MBE Torts

Question 1

Does offensive contact require phyiscal interface with the tortfeasor and the victim?

Answer 1

No

Question 2

Elements of assault

Answer 2

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 an offensive contact.

Question 3

Intentional infliction of emotional distress

Answer 3

A defendant is liable for intentionally or recklessly acting with extreme and outrageous conduct that causes the plaintiff severe emotional distress. A defendant’s conduct must be such that ordinary people would conclude that it is “outrageous.”

Question 4

Elements of conversion and damages

Answer 4

A defendant is liable for conversion if he intentionally commits an act depriving the plaintiff of possession of her chattel or interfering with the plaintiff’s chattel in a manner so serious as to deprive the plaintiff of the use of the chattel. The plaintiff’s damages are the chattel’s full value at the time of the conversion.

Question 5

Invitee + Scope of the invitation

Answer 5

this duty of care does not extend past the scope of the invitation. An invitee is treated as a trespasser in areas beyond that scope.

Question 6

Duty of common carriers (CL or 3RST)

Answer 6

While common carriers and innkeepers were held to the highest duty of care consistent with the practical operation of the business at common law, the Third Restatement requires that common carriers and innkeepers exercise reasonable care toward their passengers and guests.

Question 7

Res Ipsa and The value chain

Answer 7

Under the traditional standard for res ipsa loquitur, the plaintiff must prove that (i) the accident was of a kind that ordinarily does not occur in the absence of negligence; (ii) it was caused by an agent or instrumentality within the exclusive control of the defendant; and (iii) it was not due to any action on the part of the plaintiff. In the instant case, the botulinium bacteria could have arisen either in the manufacturing process, when the soup can was under the control of the food company, or later, when the soup can was under the control of either the supermarket or the consumer herself. Thus, res ipsa loquitur does not apply, and the consumer’s case cannot survive a directed verdict without direct evidence of negligence on the part of the food company.

Question 8

Pure Comparative + Pure several liability. damages?

Answer 8

Apportioned amount + No right of contribution from other D

Question 9

Pure Comp Neg

Answer 9

Under a system of pure comparative negligence, a plaintiff’s damages are reduced by the proportion that his fault bears to the total harm.

Question 10

Partial comp Neg

Answer 10

partial comparative negligence, the plaintiff’s recovery may be barred if the plaintiff is at least 50% at fault or at least more at fault than the defendant (depending on the jurisdiction).

Question 11

A taxi cab driver who was negligent? protected class in the statute?

Answer 11

Y

Question 12

can negligence perse constitute the complete bar of recovery for the plaintiff?

Answer 12

If that negligence caused the injury

Question 13

A friend playing with the knife’s unknown aspects? Assumption of risks?

Answer 13

No. A plaintiff’s voluntarily encountering a known, specific risk is an affirmative defense to negligence that affects recovery. Here, the friend did not voluntarily and knowingly assume the specific risk of getting a serious knife wound.

Question 14

Define Contribut Neg

Answer 14

ontributory negligence occurs when a plaintiff fails to exercise reasonable care for her own safety and thereby contributes to her own injury.

Question 15

Dentists providing implant teeth in a negligent manner. Subject to ProdLiab suit with SL?

Answer 15

No. Doctors and hospitals are treated as the provider of a service, rather than goods, even where the defective product is implanted in a patient. Consequently, it is likely that similar treatment would be accorded to a dentist. Since the dentist is most likely not treated as a seller of the defective tooth, he is not subject to strict liability with regard to the harm caused by its defect. Answer choice A is incorrect. Although the dentist’s use of reasonable care would be relevant to a negligence claim brought by the woman, it is not relevant to an action for strict products liability

Question 16

Seller + merchant + a defective product. Liability under value chain?

Answer 16

As long as the seller is in the business of selling the product, she is subject to strict liability for a defective product, even if she was not responsible for the defect in any way and even when the product is not purchased directly from her. The commercial supplier of a component is subject to liability if the component itself is defective.

Question 17

Defamation

Answer 17

. Defamation is the publication of information about the plaintiff that injures the plaintiff’s reputation.

Question 18

Defamation + public figure

Answer 18

n. As a public figure, the football player must prove that the activist acted with actual malice in order to recover. Actual malice means that she either knew the statement was false or acted with reckless disregard as to the truth or falsity of the statement.

Question 19

neg per se + minority/majority approach

Answer 19

In most jurisdictions, this violation can establish negligence as a matter of law. In a minority of jurisdictions, however, violation of that statute can give rise to a rebuttable presumption that the defendant owed a duty and breached it.

Question 20

Intrusion upon seclusion

Answer 20

t. The defendant’s act of intruding, physically or otherwise, into the plaintiff’s private affairs, solitude, or seclusion, if the intrusion is highly offensive to a reasonable person, establishes liability.

Question 21

Intentional Interference with a K

Answer 21

To prove intentional interference with a contract, the competitor must prove that (1) a valid contract existed between the competitor and the manufacturer, (2) the company knew of the contractual relationship, (3) the company intentionally interfered with the contract, causing a breach, and (4) the breach caused damages to the competitor.

Question 22

defective product. PL claim. What should be foreseeable? injury or the method of use?

Answer 22

To recover under a strict products liability theory, the plaintiff must plead and prove that the product was defective, the defect existed when it left the defendant’s control, and the defect caused the plaintiff’s injuries when the product was used in an intended or reasonably foreseeable way.

Question 23

Learned intermediary

Exception:

Answer 23

Learned intermediary is a defense doctrine used in the legal system of the United States. This doctrine states that a manufacturer of a product has fulfilled its duty of care when it provides all of the necessary information to a “learned intermediary” who then interacts with the consumer of a product.

exception: drugs marketed directly to consumers

Question 24

Potential plaintiffs of product liability

Answer 24

Anyone foreseeably injured

Question 25

Potential D + Product liability

Answer 25

Anyone who sells

in the chain of distribution + in the biz

Question 26

PL liability of a manufacturer of a component, which is not itself defective

Answer 26

The commercial supplier of a component that is integrated into a product during its manufacture is not liable unless the component itself is defective or the supplier substantially participates in the integration process and the integration of the component causes the product to be defective.

Question 27

Failure to warn defects

Answer 27

A failure to warn defect exists if there were foreseeable risks of harm not obvious to an ordinary user of the product, and those risks could have been reduced or avoided by providing reasonable instructions or warnings. The failure to include the instructions or warnings renders the product not reasonably safe.

Question 28

Learned intermediary rule

Answer 28

According to the “learned intermediary rule,” the manufacturer of a prescription drug typically satisfies its duty to warn the consumer by informing the prescribing physician of problems with the drug rather than informing the patient taking the drug.

Question 29

Domestic animal owners’ liability when with knowledge of dangerous propensity. Standard?

Answer 29

A domestic animal’s owner is strictly liable for injuries caused by that animal if he knows or has reason to know of the animal’s dangerous propensities, and the harm results from those dangerous propensities.

Question 30

NIED

Injury requirement?

Nominal damages?

Answer 30

“Negligent infliction of emotional distress” (NEID) is a personal injury law concept that arises when one person (the defendant) acts so carelessly that he or she must compensate the injured person (the plaintiff) for resulting mental or emotional injury.

Nominal damages are not allowed

Question 31

3rd RST an owner’s duty.

Exception

Answer 31

According to the Third Restatement, an owner owes a duty of reasonable care to all, even trespassers, except for “flagrant” trespassers. Here, the owner should have exercised reasonable care to prevent harm to the entrants posed by artificial conditions (such as the uneven floors). He should have exercised reasonable care to ensure the safety of the building, as he knew and impliedly approved of the entrants being in the building; while they were trespassers, they were not “flagrant” trespassers.
Flagrant Trespasser? Bad guys: on property with evil intent.

Question 32

Negligence Per Se

Majority approach/ Minority approach

Answer 32

In most jurisdictions, this violation can establish negligence as a matter of law. In a minority of jurisdictions, however, violation of that statute can give rise to a rebuttable presumption that the defendant owed a duty and breached it. This violation is referred to as negligence per se.

Question 33

Automobile driver’s duty

Minority approach: Guest statute

Answer 33

In most jurisdictions, an automobile driver owes a duty of ordinary reasonable care to all passengers, including guests (i.e., individuals who do not confer an economic benefit for the ride on the driver). However, a minority of states distinguish between the two with “guest statutes,” which impose only a duty to refrain from gross or wanton and willful misconduct with respect to a guest.

Question 34

Landowners’ duty

Answer 34

Land possessors owe a duty toward discovered or anticipated trespassers to warn or protect them from concealed, dangerous, artificial conditions. There is no duty to warn of natural conditions or artificial conditions that do not involve risk of death or serious bodily harm.

Question 35

Private nuisance requirements

Answer 35

A private nuisance is a thing or activity that substantially and unreasonably interferes with another individual’s use or enjoyment of his land. The interference must be intentional, negligent, reckless, or the result of abnormally dangerous conduct to constitute nuisance. Finally, a substantial interference is one that would be offensive, inconvenient, or annoying to a normal, reasonable person in the community.

Question 36

False imprisonment

Answer 36

1. Intent
2. Confinement in bounded areas
3. Against P’s will
4. P is aware or injured

Question 37

A defendant liability for outrageous conduct

Answer 37

A defendant may be liable to a third-party victim if he intentionally or recklessly causes severe emotional distress to a member of the victim’s immediate family who contemporaneously perceives the defendant’s conduct, whether or not such distress results in bodily injury.

Question 38

Emotional distress + Public figure. What intent is necessary?

Answer 38

Public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications without showing in addition that the publication contains a false statement of fact which was made with “actual malice,” i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true.

Question 39

Trespass to chattels - damage requirement

Answer 39

In the case of dispossession, a plaintiff must prove damages by either the actual damages caused by the interference or the loss of use. In the case of use or intermeddling, the plaintiff must show actual damages.

Question 40

can a PL sue under private nuisance claim even if he/she never experienced?

Answer 40

Yes. Even a “thick-skinned” plaintiff who is not offended, inconvenienced, or annoyed is nevertheless entitled to recover if an average reasonable person would be, although the amount of damages may be affected. Thus, although the neighbor never actually noticed the odor until she was told about it, she can still recover because a reasonable person in the community would find the smell of the manure to be offensive, inconvenient, or annoying.

Question 41

Trespass action v. Nuisance action

Answer 41

Unlike a trespass action, a nuisance action does not require a physical invasion of the plaintiff’s property.

Question 42

Public nuisance action + colorable claim by the private party?

Answer 42

A public nuisance is an unreasonable interference with a right common to the general public. A private citizen has a claim for public nuisance only if she suffers harm that is different in kind from that suffered by members of the general public. Here, the incessant noise from the oil well operations has driven the songbirds away from the area. This has had a significant economic effect on the garden, which is a harm different in kind from that suffered by the general public. Accordingly, the garden will succeed in its action.

Question 43

Yoga stealing dude. Duty?

Answer 43

Yes . A duty of care is generally owed to all foreseeable plaintiffs. The majority rule for determining whether a plaintiff is a “foreseeable plaintiff,” is whether the plaintiff is within the zone of foreseeable harm. This rule is referred to as the “Cardozo view.” Here, the instructor was aware that the potential student copied her actions from a nearby park.

Question 44

A callous law clerk passing by - duty?

Answer 44

Nope

Question 45

Firefighter rule

Answer 45

An emergency professional, such as a police officer or firefighter, is barred from recovering damages from the party whose negligence caused the professional’s injury if the injury results from a risk inherent in the job (“firefighter’s rule”).

Question 46

Professional person standard

Answer 46

A professional person, including a lawyer, is expected to exhibit the same skill, knowledge, and care as an ordinary practitioner in the same community.

Question 47

Duty to discovered trespasser

Answer 47

As a discovered trespasser, the golf course owed a duty to warn or protect the man from concealed, dangerous, artificial conditions, such as the live electrical wires.

Question 48

Duty to ____, ____ trespassers

Answer 48

Landowners owe a duty to warn or protect anticipated or discovered trespassers from concealed, dangerous, artificial conditions. If the trespasser is a child, such as in this case, the landowner may be liable under the “attractive nuisance” doctrine.

Question 49

Failure to mitigate in a comp neg JX

Answer 49

the failure to mitigate damages is not a bar to recovery in a pure comparative negligence jurisdiction.

Question 50

Father fails to supervise an abnormally aggressive child + medication needs. Liability?

Answer 50

the father is liable for his own negligence, but he will not be vicariously liable for the boy’s tortious conduct.

Question 51

Damage award based on vicarious liability + landowner’s negligence. Can the landowner bring suit for damages against the landscaper?

Answer 51

Y. based on vicarious liability –> indeminifcation available.

Question 52

PL claim design defect theory. Risk utility test.

Answer 52

a jury must determine whether the risks posed by a product outweigh its benefits. To succeed, a plaintiff must prove that a reasonable alternative design was available to the defendant and the failure to use that design has rendered the product not reasonably safe. The reasonable alternative design must be economically feasible.

Question 53

Misappropriation of the right to publicity claim

Answer 53

To prove the misappropriation of the right to publicity, the plaintiff must prove that the defendant appropriated the plaintiff’s name, likeness, or identity for the defendant’s advantage without the plaintiff’s consent, and that there was a resulting injury to the plaintiff.

Question 54

Misrepresentation claim requirements.

Answer 54

o recover for intentional misrepresentation, the plaintiff must establish a misrepresentation by the defendant, scienter, intent to induce the plaintiff’s reliance, justifiable reliance by the plaintiff, and actual economic damages. Here, the woman relied on the trainer’s false assertions regarding the pills with the intent to induce her reliance on his statements, and the woman justifiably relied upon his false assertions. However, the woman did not suffer any pecuniary loss since she did not pay for the pills. Thus, while she likely has some tortious claim against the trainer, she will not succeed on a claim for intentional misrepresentation.

Question 55

Both but for cuasation and proximate causation required?

Answer 55

Yes

Question 56

Doctrine of transferred intent

Answer 56

Transferred intent exists when a person intends to commit an intentional tort against one person but instead commits:

i) A different intentional tort against that person;
ii) The intended tort against a different person; or
iii) A different intentional tort against a different person.

Question 57

Invasion of privacy

Answer 57

An action for the invasion of privacy based on the public disclosure of private facts is grounded in the disclosure of truthful information about the plaintiff that is not of legitimate concern to the public and that a reasonable person would find highly offensive.

Question 58

Placement in false light

Answer 58

herefore, if the individual shows that the publisher made public facts about her that a reasonable person would find highly offensive, and which placed her in a false light, she will prevail.

Question 59

Conduct is extreme and outrageous if

Answer 59

Conduct is extreme and outrageous if it exceeds the possible limits of human decency, so as to be entirely intolerable in a civilized society.

Question 60

Duty to protect invitees. delegable?

Answer 60

The land possessor’s duty to invitees is a non-delegable duty. For example, even if a store owner hires an independent contractor to maintain the escalator in her store, she will remain liable if the contractor negligently fails to properly maintain the escalator.

Question 61

RP Seller’s duty to the buyer

Answer 61

Sellers of real property owe a duty to disclose to buyers those concealed and unreasonably dangerous conditions known to the seller.

Question 62

Intentional misrepresentation

Answer 62

To recover for intentional misrepresentation, the plaintiff must establish a misrepresentation by the defendant, scienter, intent to induce the plaintiff’s reliance, causation, justifiable reliance by the plaintiff, and damages.
Scienter - knowledge or reckless disregard

Question 63

IIED

Answer 63

1. Intentional or Recklessness
2. Extreme and Outrageous conduct
3. Sever emotional distress

Question 64

Trespass to land

Answer 64

1. Intent
2. Entry
3. P’s land

Question 65

Trespass to chattels

Answer 65

1. Intent
2. Interference
3. P’s chattel
4. Actual damage(unlike trespass)

Question 66

Conversion

Answer 66

1. Intent
2. Dominion and control by D
3. Destruction or serious substantial interference

Question 67

NIED

Answer 67

1. Zone of Danger

2. Physical manifestation

Question 68

Eggshell P rule

Answer 68

Take the victim as you find him.

Question 69

Types of damages

Answer 69

Compensatory ( Special , General)

punitive

Question 70

Conditional Privilege

Answer 70

a. comms to advance D’s own interests
b. communicated on a matter of interest to the recipient of the comms to a third person
c. communicated concerning a matter of public interest

Question 71

Intrusion into seclusion

Answer 71

1. Intrusion highly objectionable to a Reasona

2. Includes compensatory damages

Question 72

Commercial appropriation of likeness or identity

Answer 72

unauthorized use of P’s name voice…

For commercial advantage

Question 73

Public disclosure of private true facts

Answer 73

Disclosure
Private facts
disclosure highly offensive to Reasona
not newsworthy

Question 74

Portrayal in false light

Answer 74

Publication + False information + divulging highly offensive to Reasona + some level of fault

Question 75

Intentional misrep

Answer 75

1. Intentional
2. Material
3. Present or past fact
4. Reliance

Question 76

Interference with prospective econo adv

Answer 76

1. Knew of the prospective adv

2. acted to interfere with improper motives

Question 77

Negligent misrep

Answer 77

economic, actual harm reqruied