MBE Torts Flashcards
1
Q
What are the elements for negligence?
A
(1) Duty, (2) Breach, (3) Causation, (4) Damages
2
Q
Who do you owe a duty of care to?
A
Foreseeable plaintiffs
3
Q
Who is a foreseeable plaintiff?
A
Those who are in the zone of danger and foreseeable
4
Q
What is the standard when you have a duty of care?
A
Reasonably prudent person
5
Q
What level of care does a professional have?
A
Heightened duty of care. Must act like other like professionals with the same background and training in the area
6
Q
What is the standard for duty of care for a minor?
A
Like other children of the same age, intelligence, and experience
7
Q
What is the duty of a parent?
A
To control their kid to prevent harm
8
Q
When does duty of a parent apply?
A
When parent knew or should have known that their child is likely to cause harm
9
Q
Is there generally a duty to aid or rescue?
A
No
10
Q
When is there a duty to aid?
A
Only when there is a special relationship
Ex: employer/employee, inkeeper/guest, common carrier/passenger
11
Q
If you begin to render aid, what level of care is required?
A
That of a reasonable person
12
Q
What is a land owner’s duty to an unknown trespasser?
A
None
13
Q
What is a land owner’s duty to a known trespasser or anticipated trespasser?
A
Duty to warn (or make safe) of KNOWN dangers (protect from known, man-made death trap)
14
Q
Who is a licensee?
A
Social guest
15
Q
What is a land owner’s duty to an invitee?
A
To warn, cleanup, and make safe (Barbri: protect from all reasonably known traps- need reasonable inspection)
16
Q
Who is an invitee?
A
Business/commercial
17
Q
What is a breach?
A
Didn’t do what you were supposed to do
18
Q
What are the elements of causation?
A
Actual causation and proximate case
19
Q
What is the test for actual causation?
A
But for
20
Q
What is proximate cause?
A
Whether the event was foreseeable
21
Q
What is an intervening cause?
A
A foreseeable event
22
Q
Who is liable for an intervening cause?
A
The original tortfeasor
23
Q
What is a superseding cause?
A
An unforeseeable event that cuts off liability
24
Q
What are the three superseding causes?
A
1) Act of God
2) Intentional torts
3) Criminal acts
25
What is a foreseeable event in terms of superseding cause?
Everything, unless they tell you that it is not foreseeable
26
What is needed for damages under common law?
Actual, physical harm
27
What is not required for damages under common law?
Economic damage
28
What is negligence per se?
Violation of a statute or ordinance
29
What are the elements of negligence per se?
1) Plaintiff is part of protected class of people that statute is trying to protect
2) Injury is the kind the statute was trying to prevent
30
What is res ipsa?
Whatever occurred does not normally occur, absent negligence
31
Elements of res ipsa?
1) Defendant is in exclusive control of the premises or instrumentality and 2) raises inference of negligence
32
For what two things is a defendant strictly liable?
1) Owning wild animals
| 2) Abnormally dangerous activities
33
Can you domesticate a wild animal?
No
34
For what is defendant liable because of his wild animal?
Any injury that results (including fear)
35
What is a defense to strict liability?
Assumption of the risk
36
What is the standard for assumption of the risk?
You know and appreciate the risk involved but proceed anyway
37
What are some examples of abnormally dangerous activities?
Blowing up, excavating, hazardous, chemicals, fireworks
38
What is the default negligence apportionment?
Pure comparative
39
What is contributory negligence?
If plaintiff contributed, get nothing
40
What is the exception to contributory negligence?
Last clear chance rule
41
What is the last clear chance rule?
Even if plaintiff was negligent, if the defendant had the last clear chance to avoid the accident and did not, plaintiff may recover
42
What is comparative negligence?
Plaintiff recovers but amount reduced by their own percentage of fault
43
What is the modern/modified comparative negligence?
If plaintiff is responsible for more than 50% of accident, plaintiff recovers nothing
44
What is joint and several liability?
Two or more people cause a single accident and plaintiff may recover all of the damages from a single defendant
45
What is contribution?
One co-defendant will ask other defendant to pay what they're owed because they paid their part to plaintiff
46
What is vicarious liability?
Employer is liable for the negligent acts of their employee
47
When does vicarious liability apply?
When the employee was acting within the scope of his employment
48
When are you liable for independent contractor's negligent conduct?
1) Contractor engaged in abnormally dangerous activity
| 2) Is doing a non-delegable duty
49
What is a non-delegable duty?
Work done on or behalf of the safety of the public
50
What are some examples of a non-delegable duty?
Doing work on public land or property, scaffolding, lobby
51
What is the standard for private nuisance?
Someone's activity unreasonably interferes with the use and enjoyment of your land
52
What is the standard for unreasonable interference in private nuisance?
Reasonable person standard
53
What is the standard for public nuisance?
Unreasonable interference w/ health, safety, or property rights of community and results in special or unique harm/damage
54
What is public nuisance?
Affects the public (community at large)
55
Can a person reasonably apprehend an immediate contact although he is not scared or intimidated?
Yes
56
Are words alone enough for assault_
No
57
What are the elements of battery?
1) Act by defendant that brings about harmful or offensive contact;
2) intent for the harmful or offensive contact; and
3) Causation
58
May a landowner use force to regain real property after being tortiously dispossessed?
No because this is “self help.” Can bring an ejectment action instead
59
May an owner of chattel use force to recapture chattel?
Yes, when in “hot pursuit” of the tortfeasor. Need to make a demand that the chattel be returned first though, unless the demand would be futile or dangerous
60
May a citizen use force to effect a misdemeanor arrest?
Yes, but only force necessary to effect the arrest
61
What are the conditions for shopkeeper’s privilege?
1) Reasonable belief as to the fact of theft
2) Detention must be in a reasonable manner
3) Detention must be only for.a reasonable time and only for the purpose of making the investigation
62
What must a landowner usually do before defending her property?
Make a request to desist (not required if request would be futile or dangerous)
63
How can an owner get property back if someone else got the owner’s property lawfully?
Owner can only recover the property through peaceful means. Force can only be used when in hot pursuit
64
If a shopper loses against a store security guard, what is the most likely reason?
The guard acted reasonably in dealing with the suspected shop lifter
65
What must a plaintiff prove for assault?
That the defendant’s actions caused the plaintiff to be in reasonable apprehension of an immediate harmful or offensive contact and defendant intended to cause this reaction
66
What does it mean that a store raises a defense of recapture of chattel?
Property owner (or his agent) allowed to use reasonable force or threat of force to recapture chattel and has a specialized application in the shopkeeper’s privilege
67
Can a home owner use a vicious dog to protect his property against a mere trespasser?
No because this is indirect deadly force
68
Can trespassers recover from injuries inflicted by a landowner’s abnormally dangerous domestic animal?
No without a showing of negligence
69
What is private necessity?
A person may interfere with the property of another when the interference is reasonably and apparently necessary to avoid threatened injury from a natural or other force and threatened injury is substantially more serious that the invasion that is undertaken to avert it
70
What does negligence per se (breaking statute) really mean?
Means that the plaintiff will have established a conclusive presumption of duty and breach of duty by showing a violation of the statute (still need to establish causation and damages)
71
For negligence per se, when will a violation of a statute be excused?
(1) Compliance would cause more danger, or (2) compliance would be beyond defendant's control
72
If driver suffers an unexpected heart attack (never had one before) is there a valid negligence claim?
No because driver would not be deemed to have breached a duty of care to other drivers
73
At common law, is parent vicariously liable for negligent conduct of child?
No, but will be responsible for his own negligence/breach of duty
74
Under invitee/licensee, what are firefighters and police officers considered?
Generally treated liked licensees
75
What is the duty to licensees?
Warn or make safe of known dangers
76
What four wrongs does invasion of privacy cover?
1) intrusion into seclusion;
2) public disclosure of private facts;
3) false light publicity; and
4) appropriation of another's name or likeness
77
What is needed for a claim of appropriation under invasion of privacy?
Plaintiff needs to prove that defendant made unauthorized use of plaintiff's picture or name for commercial advantage
78
In products liability cases, under a negligence theory what is required for proximate causation?
The harm which occurred must have been foreseeable
79
What is needed for a prima facie case of products liability based in negligence?
Existence of a legal duty owed by the defendant to that particular plaintiff, breach of that duty, actual and proximate cause, and damages
80
What is the threshold issue to recover damages on a strict liability products liability claim?
Whether the defect existed at the time the product left the factory
81
What are the five theories of products liability?
1) intent
2) negligence
3) strict liability
4) express warranty
5) implied warranty
82
What is required for a prima facie case of products liability under strict liability?
A commercial supplier of a product, producing or selling a defective product, actual and proximate cause, damage
83
What must a plaintiff prove in a claim for defamation?
That there was a defamatory communication of fact made about the plaintiff, published to a third person who understood it was defamatory, and a resulting harm to the plaintiff
84
What is slander?
Verbal defamation
85
What must a plaintiff plead and prove in a claim for slander?
Special damages (pecuniary)
86
What are the four exceptions where a plaintiff does not need to plead and prove special damages for slander?
Allegations regarding (1) criminal activity, (2) misconduct regarding plaintiff's occupation, (3) sexual misconduct, and (4) plaintiff having a loathsome disease
87
Strict liability requires proof of what elements?
Nature of the defendant's activity impose an absolute duty to make safe, dangerous aspect of the activity was actual & proximate cause, plaintiff suffered damage to person or property
88
What is required for an activity to be abnormally dangerous?
1) Activity creates a foreseeable risk of serious harm even when reasonable care is exercised by all actors; and
2) activity can't be one of common usage in the community
89
What is always a complete defense to defamation?
Truth
90
For defamation involving a matter of public concern, what must the plaintiff also show?
That the defendant acted with actual malice (if honestly thought something was true, that's not malice)
91
Can strict liability be imposed on a storekeeper?
Strict liability can be imposed upon a storekeeper for the sale of any product which is in a defective condition or unreasonably dangerous to the user
92
What is something requires for res ipsa?
Exclusive control of defendant
93
For strict liability to apply in defective design, what must plaintiff show?
That the risk and severity of his injuries were predictable (risk-utility balancing test)
94
What is the attractive nuisance doctrine?
Landowner has duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by dangerous artificial conditions on their property (calling kids' attention)
95
What is the standard of care for a professional?
Same care as average person in that position doing similar activity (using national standard)
96
What is a landowner's duty to a licensee?
Duty to warn or make safe all known traps
97
What must the plaintiff show to prevail on a claim of public disclosure of private facts?
Plaintiff must show that the defendant published private information about the plaintiff and the private information being publicized is non-newsworthy and would be highly offensive to a reasonable person
98
What is required for a claim of IIED?
Extreme and outrageous conduct by the defendant, plaintiff suffered severe emotional distress, and a mental state (wanted to cause ED, knew with substantial certainty plaintiff would suffer ED, recklessly disregarded high probability that ED would occur)
99
What does it mean that "the wrongdoers, rather than their victim, should bear the burden of the impossibility of apportionment?"
When two or more defendants cause a single, indivisible harm that such liability cannot be apportioned between them, both defendants are liable for the whole harm
100
If rescuer injured in trying to go rescue you, are you liable?
Only if you acted negligently and endangered yourself
101
How do you establish the intent for battery?
Either that defendant intended a harmful offensive bodily contact or and imminent apprehension of a harmful or offensive bodily contact
102
What is assumption of the risk a defense to?
Only negligence and strict liability claims NOT intentional torts
103
Is consent applicable to sports?
Yes, unless defendant intentionally attacked or injured the plaintiff or makes contact that goes beyond what is impliedly consented to
104
What is the qualified privilege of defamation for prospective employers?
Former employers have a qualified privilege to provide statements to prospective employers about job applicants as long as the statements are not made with knowledge of falsity or reckless disregard for the truth
105
How are damages for conversion calculated?
Full value at the time of the conversion
106
What is the effect of res ipsa on a breach of duty?
The fact that a particular injury occurred tends to establish the breach of a duty owed
107
Do you need to show actual possession for res ipsa?
No
108
Does res ipsa create a presumption of negligence?
No, but does not allow defendant to get a directed verdict
109
What is a direct cause case?
One where the facts present an uninterrupted chain of events from the time of the defendant's negligent act to plaintiff's injury
110
What is not relevant in a direct cause case?
The unusual manner in which the injury occurred
111
Are criminal acts of a third party always superseding intervening causes?
Depends on the foreseeability.
| Ex: If go through a bad area everyday, then it's foreseeable
112
What is a trespassing animal?
Trespass of animal (other than household pet) (Owner strictly liable as long as damage was reasonably foreseeable)
113
Is determining whether something is abnormally dangerous a question of law or fact?
Question of law (court can decide it on a motion for directed verdict)
114
When will owner be strictly liable for a domestic animal?
When the owner knows of the domestic animal's dangerous propensities
115
Is an owner liable for the actions of a bull?
No because farm animals are domestic
116
In contrast to products liability cases based on negligence, those based on strict liability do not____
Require that suppliers have an opportunity to inspect (negligence: supplier's negligence must be proven, strict liability: can be sued just bc in commerce chain)
117
If the defect has inadequate warnings, is the plaintiff entitled to a presumption that an adequate warning would have been read and heeded?
Yes
118
Who may a rescuer recover from?
The person who created the situation in which the rescue was needed because they made the rescuer a foreseeable plaintiff
119
If person tells independent contractor what to do, can they liable?
Yes
120
When can punitive damages be awarded?
Only when there is proof of the defendant's willful or wanton misconduct
121
Can a person use reasonable force to protect another against imminent harm?
Yes, this is privileged and not liable for battery
122
How to recover under negligent infliction of emotional distress if defendant injured someone else?
close family member and saw it as it happened (contemporaneous)
123
What is insufficient for false imprisonment?
Moral pressure or future threats
124
Elements for intentional infliction of emotional distress?
1) Extreme and outrageous conduct
| 2) Severe emotional distress
125
What is extreme and outrageous conduct?
Transcends all bounds of decency
126
When will someone be held liable even if person consented?
1) mistake if defendant knew and took advantage of the mistake
2) fraud as to an essential element
3) duress
127
Is mistake allowed for self defense?
Yes, if reasonable mistake as to the existence of the danger
128
Necessity is a defense only to what types of torts?
Property torts
129
What is the name of the rule that police officers and firefighters basically assumed the risk in their job duties?
Firefighter's Rule
130
What is the standard of care for a professional?
Same care as the average person in that profession doing similar activity (national standard-need expert witness)
131
When would violation of a statute be excused?
1) more danger in complying
| 2) Compliance is impossible
132
What standard to fall back on if can't get negligence per se?
Reasonably prudent person
133
What are the elements for negligenct infliction of emotional distress if just nearly missed YOU?
1) Plaintiff in zone of danger
| 2) Plaintiff must suffer physical symptoms of distress
134
What is the standard for negligent infliction of emotional distress if special relationship between plaintiff and defendant?
Foreseeable that it would cause distress (highly foreseeable)
135
What is the test if multiple causes and either cause could have caused the harm
Substantial factor test
136
What if unascertainable who caused the harm?
Burden of proof shifts to the defendants
137
Last clear chance is used in what kind of jurisdictions?
Contributory negligence jurisdictions
138
What are the elements for strict product liability? Defective products
1) D is a merchant
2) Defective product
3) Not substantially altered
4) Foreseeable risk
139
What are the three types of defects for strict product liability?
Manufacturing, design, information
140
What is a manufacturing defect?
Comes out different than the others
141
What is a design defect?
Risk > utility
| P must show alternative design that would be safer, practical, economically feasible
142
What is needed for defendant to succeed on an information defect strict product liability claim?
Warning was adequate (prominent, comprehensible, provided information about mitigating risk)
143
What are the elements of defamation?
1a) defamatory statement that
1b) specifically identifies the plaintiff
2) published to a 3d party
3) damage to plaintiff's reputation
4) Falsity of the defamatory language
5) Fault on part of defendant
144
What is a defamatory statement?
One tending to adversely affect one's reputation
145
If defamatory statement about small group of people, who has a claim?
Everyone in that group
146
If defamatory statement against large group, who has aa claim?
No one
147
What is plaintiff dead when defamatory statement made?
No claim
148
What is the intent in defamation?
Intent to publish
149
Is damage presumed in libel?
Yes
150
What are the only slander cases that damages are presumed?
1) adversely reflect plaintiff's business/profession
2) State that plaintiff has committed a serious crime
3) State plaintiff has a loathsome disease
151
For a public figures to win on a claim of defamation, what must he show?
Actual malice
152
What is actual malice for defamation?
Knowledge that the statement was false or reckless disregard as to whether it was false
153
If defamation is based on a matter of public concern (even if private plaintiff), what must be shown?
Negligence regarding the falsity
154
If plaintiff shows negligence for claim involving public concern, what damages can he get
Actual injury damages
| Malice=punitive
155
What are the 4 types of invasions of privacy?
1) Appropriation
2) Intrusion
3) False light
4) Disclosure
156
What is appropriation?
Invasion of privacy claim in which using plaintiff's name/image for a commercial purpose
157
What is an exception to appropriation
Newsworthiness
158
What is intrusion?
Invasion of privacy claim in which there was an invasion of person's seclusion that would be highly offensive to a reasonable person
159
What is false light?
Invasion of privacy claim in which there is widespread dissemination that would be highly offensive to a reasonable person (some states require knowing or reckless)
160
What is disclosure?
Invasion of privacy claim in which there is widespread dissemination of confidential information (newsworthiness exception applicable)
161
Does duty to warn extend to dangerous conditions that the licensee should reasonably have discovered?
No
162
When does unascertainable negligence rule to shift burden apply?
When two or more persons are negligent
163
What is the duty of a rescuer?
To act reasonably under the emergency
164
What is required for negligent hiring?
Some reason to be on notice that the actions that resulted in harm were likely to occur (reasonable employer...)
165
What happens when invitee exceeds where he is allowed to go?
Status becomes that of a known trespasser
166
Foreseeability for intentional tort?
Nope
167
What is a way in which the owner of a domestic dog would be liable for the acts of the dog?
If the defendant knew of his dog's mischievous propensity
168
What are the elements of a claim for tortious interference?
(1) existence of a valid contractual relationship between the plaintiff and a 3rd party or valid business expectancy by plaintiff; (2) Defendant knew of the relationship/expectancy (3) D intentionally interfered and thereby induced breach or termination; and (4) plaintiff suffered damage as a result
169
Is using reasonable methods to prevent a nuisance a defense to nuisance?
No if still a substantial and unreasonable interference with person's use or enjoyment
170
Can strict liability be imposed on the seller of a product that is defective or unreasonably dangerous?
Yes
171
When can a person recover the whole amount for contribution when even they were negligent?
When the other person committed an intentional tort
172
What needs to be shown to prevail on a claim for defamation for a statement made at a public hearing?
Plaintiff must be able to show that the speaker-defendant spoke with actual malice (meaning knowledge that it was false or with reckless disregard of its truth or falsity)
173
Can a person still be liable if they committed an intentional tort and something unexpected happens?
Yes, liable for all harm whether foreseeable or not
174
What must a plaintiff show under any theory of products liability?
That the product was defective when the product left the defendant's control
175
When does duty of care arise in a products liability context?
When the defendant engages in the affirmative conduct associated with being a commercial
176
How to prove breach in a negligent products liability case?
Negligent conduct by the defendant leading to supplying of a defective product
177
What are the elements for the presumption that the goods were not defective when it was sold to the purchaser?
1) Complied with federal and state law;
2) Laws were designed to prevent the type of harm that allegedly occurred; and
3) compliance with the laws is required as a condition for selling or distributing the product
178
What does the retailer need to show in a negligent products liability case?
No reason to anticipate that the product is dangerous and only needed to make a cursory inspection of the goods to avoid liability for manufacturing defects
179
When to bring up implied warranties or merchantability and fitness for a particular purpose?
"When a merchant who deals in a certain kind of good, sells the good. At which point, there is a warranty that they are merchantable"
180
What is the warranty of merchantability?
The goods are of a quality equal to that generally acceptable among those who deal in similar goods and are generally fit for the ordinary purpose for which such goods are used
181
What are the elements of negligent misrepresentation?
1) Misrepresentation
2) breach of duty
3) causation
4) justifiable reliance by the plaintiff on the misrepresentation
5) damages
182
For negligent misrepresentation, who is a duty of cared owed to?
Only to those persons to whom the representation was made or specific persons who defendant knew would rely on it
183
What's a possible defense to vicarious liability?
Frolic- not within the scope or course of employment
184
What is needed for forgery?
Intent to defraud and the document must have legal significance
185
Can someone recover in strict product liability for the economic loss a person suffered?
Under the economic loss doctrine, parties can't recover from someone when the negligence of another led to pure economic loss
186
If assumption of the risk found, how much in damages can the plaintiff recover?
Nothing. Assumption of the risk is a complete defense
