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MBE > MBE Torts > Flashcards

MBE Torts Flashcards

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1
Q

What are the elements for negligence?

A

(1) Duty, (2) Breach, (3) Causation, (4) Damages

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2
Q

Who do you owe a duty of care to?

A

Foreseeable plaintiffs

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3
Q

Who is a foreseeable plaintiff?

A

Those who are in the zone of danger and foreseeable

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4
Q

What is the standard when you have a duty of care?

A

Reasonably prudent person

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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

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6
Q

What is the standard for duty of care for a minor?

A

Like other children of the same age, intelligence, and experience

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7
Q

What is the duty of a parent?

A

To control their kid to prevent harm

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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

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9
Q

Is there generally a duty to aid or rescue?

A

No

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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

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11
Q

If you begin to render aid, what level of care is required?

A

That of a reasonable person

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12
Q

What is a land owner’s duty to an unknown trespasser?

A

None

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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)

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14
Q

Who is a licensee?

A

Social guest

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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)

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16
Q

Who is an invitee?

A

Business/commercial

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17
Q

What is a breach?

A

Didn’t do what you were supposed to do

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18
Q

What are the elements of causation?

A

Actual causation and proximate case

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19
Q

What is the test for actual causation?

A

But for

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20
Q

What is proximate cause?

A

Whether the event was foreseeable

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21
Q

What is an intervening cause?

A

A foreseeable event

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22
Q

Who is liable for an intervening cause?

A

The original tortfeasor

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23
Q

What is a superseding cause?

A

An unforeseeable event that cuts off liability

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24
Q

What are the three superseding causes?

A

1) Act of God
2) Intentional torts
3) Criminal acts

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25
Q

What is a foreseeable event in terms of superseding cause?

A

Everything, unless they tell you that it is not foreseeable

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26
Q

What is needed for damages under common law?

A

Actual, physical harm

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27
Q

What is not required for damages under common law?

A

Economic damage

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28
Q

What is negligence per se?

A

Violation of a statute or ordinance

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29
Q

What are the elements of negligence per se?

A

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

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30
Q

What is res ipsa?

A

Whatever occurred does not normally occur, absent negligence

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31
Q

Elements of res ipsa?

A

1) Defendant is in exclusive control of the premises or instrumentality and 2) raises inference of negligence

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32
Q

For what two things is a defendant strictly liable?

A

1) Owning wild animals

2) Abnormally dangerous activities

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33
Q

Can you domesticate a wild animal?

A

No

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34
Q

For what is defendant liable because of his wild animal?

A

Any injury that results (including fear)

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35
Q

What is a defense to strict liability?

A

Assumption of the risk

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36
Q

What is the standard for assumption of the risk?

A

You know and appreciate the risk involved but proceed anyway

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37
Q

What are some examples of abnormally dangerous activities?

A

Blowing up, excavating, hazardous, chemicals, fireworks

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38
Q

What is the default negligence apportionment?

A

Pure comparative

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39
Q

What is contributory negligence?

A

If plaintiff contributed, get nothing

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40
Q

What is the exception to contributory negligence?

A

Last clear chance rule

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41
Q

What is the last clear chance rule?

A

Even if plaintiff was negligent, if the defendant had the last clear chance to avoid the accident and did not, plaintiff may recover

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42
Q

What is comparative negligence?

A

Plaintiff recovers but amount reduced by their own percentage of fault

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43
Q

What is the modern/modified comparative negligence?

A

If plaintiff is responsible for more than 50% of accident, plaintiff recovers nothing

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44
Q

What is joint and several liability?

A

Two or more people cause a single accident and plaintiff may recover all of the damages from a single defendant

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45
Q

What is contribution?

A

One co-defendant will ask other defendant to pay what they’re owed because they paid their part to plaintiff

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46
Q

What is vicarious liability?

A

Employer is liable for the negligent acts of their employee

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47
Q

When does vicarious liability apply?

A

When the employee was acting within the scope of his employment

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48
Q

When are you liable for independent contractor’s negligent conduct?

A

1) Contractor engaged in abnormally dangerous activity

2) Is doing a non-delegable duty

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49
Q

What is a non-delegable duty?

A

Work done on or behalf of the safety of the public

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50
Q

What are some examples of a non-delegable duty?

A

Doing work on public land or property, scaffolding, lobby

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51
Q

What is the standard for private nuisance?

A

Someone’s activity unreasonably interferes with the use and enjoyment of your land

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52
Q

What is the standard for unreasonable interference in private nuisance?

A

Reasonable person standard

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53
Q

What is the standard for public nuisance?

A

Unreasonable interference w/ health, safety, or property rights of community and results in special or unique harm/damage

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54
Q

What is public nuisance?

A

Affects the public (community at large)

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55
Q

Can a person reasonably apprehend an immediate contact although he is not scared or intimidated?

A

Yes

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56
Q

Are words alone enough for assault_

A

No

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57
Q

What are the elements of battery?

A

1) Act by defendant that brings about harmful or offensive contact;
2) intent for the harmful or offensive contact; and
3) Causation

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58
Q

May a landowner use force to regain real property after being tortiously dispossessed?

A

No because this is “self help.” Can bring an ejectment action instead

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59
Q

May an owner of chattel use force to recapture chattel?

A

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

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60
Q

May a citizen use force to effect a misdemeanor arrest?

A

Yes, but only force necessary to effect the arrest

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61
Q

What are the conditions for shopkeeper’s privilege?

A

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

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62
Q

What must a landowner usually do before defending her property?

A

Make a request to desist (not required if request would be futile or dangerous)

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63
Q

How can an owner get property back if someone else got the owner’s property lawfully?

A

Owner can only recover the property through peaceful means. Force can only be used when in hot pursuit

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64
Q

If a shopper loses against a store security guard, what is the most likely reason?

A

The guard acted reasonably in dealing with the suspected shop lifter

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65
Q

What must a plaintiff prove for assault?

A

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

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66
Q

What does it mean that a store raises a defense of recapture of chattel?

A

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

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67
Q

Can a home owner use a vicious dog to protect his property against a mere trespasser?

A

No because this is indirect deadly force

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68
Q

Can trespassers recover from injuries inflicted by a landowner’s abnormally dangerous domestic animal?

A

No without a showing of negligence

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69
Q

What is private necessity?

A

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

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70
Q

What does negligence per se (breaking statute) really mean?

A

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)

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71
Q

For negligence per se, when will a violation of a statute be excused?

A

(1) Compliance would cause more danger, or (2) compliance would be beyond defendant’s control

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72
Q

If driver suffers an unexpected heart attack (never had one before) is there a valid negligence claim?

A

No because driver would not be deemed to have breached a duty of care to other drivers

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73
Q

At common law, is parent vicariously liable for negligent conduct of child?

A

No, but will be responsible for his own negligence/breach of duty

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74
Q

Under invitee/licensee, what are firefighters and police officers considered?

A

Generally treated liked licensees

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75
Q

What is the duty to licensees?

A

Warn or make safe of known dangers

76
Q

What four wrongs does invasion of privacy cover?

A

1) intrusion into seclusion;
2) public disclosure of private facts;
3) false light publicity; and
4) appropriation of another’s name or likeness

77
Q

What is needed for a claim of appropriation under invasion of privacy?

A

Plaintiff needs to prove that defendant made unauthorized use of plaintiff’s picture or name for commercial advantage

78
Q

In products liability cases, under a negligence theory what is required for proximate causation?

A

The harm which occurred must have been foreseeable

79
Q

What is needed for a prima facie case of products liability based in negligence?

A

Existence of a legal duty owed by the defendant to that particular plaintiff, breach of that duty, actual and proximate cause, and damages

80
Q

What is the threshold issue to recover damages on a strict liability products liability claim?

A

Whether the defect existed at the time the product left the factory

81
Q

What are the five theories of products liability?

A

1) intent
2) negligence
3) strict liability
4) express warranty
5) implied warranty

82
Q

What is required for a prima facie case of products liability under strict liability?

A

A commercial supplier of a product, producing or selling a defective product, actual and proximate cause, damage

83
Q

What must a plaintiff prove in a claim for defamation?

A

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
Q

What is slander?

A

Verbal defamation

85
Q

What must a plaintiff plead and prove in a claim for slander?

A

Special damages (pecuniary)

86
Q

What are the four exceptions where a plaintiff does not need to plead and prove special damages for slander?

A

Allegations regarding (1) criminal activity, (2) misconduct regarding plaintiff’s occupation, (3) sexual misconduct, and (4) plaintiff having a loathsome disease

87
Q

Strict liability requires proof of what elements?

A

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
Q

What is required for an activity to be abnormally dangerous?

A

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
Q

What is always a complete defense to defamation?

A

Truth

90
Q

For defamation involving a matter of public concern, what must the plaintiff also show?

A

That the defendant acted with actual malice (if honestly thought something was true, that’s not malice)

91
Q

Can strict liability be imposed on a storekeeper?

A

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
Q

What is something requires for res ipsa?

A

Exclusive control of defendant

93
Q

For strict liability to apply in defective design, what must plaintiff show?

A

That the risk and severity of his injuries were predictable (risk-utility balancing test)

94
Q

What is the attractive nuisance doctrine?

A

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
Q

What is the standard of care for a professional?

A

Same care as average person in that position doing similar activity (using national standard)

96
Q

What is a landowner’s duty to a licensee?

A

Duty to warn or make safe all known traps

97
Q

What must the plaintiff show to prevail on a claim of public disclosure of private facts?

A

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
Q

What is required for a claim of IIED?

A

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
Q

What does it mean that “the wrongdoers, rather than their victim, should bear the burden of the impossibility of apportionment?”

A

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
Q

If rescuer injured in trying to go rescue you, are you liable?

A

Only if you acted negligently and endangered yourself

101
Q

How do you establish the intent for battery?

A

Either that defendant intended a harmful offensive bodily contact or and imminent apprehension of a harmful or offensive bodily contact

102
Q

What is assumption of the risk a defense to?

A

Only negligence and strict liability claims NOT intentional torts

103
Q

Is consent applicable to sports?

A

Yes, unless defendant intentionally attacked or injured the plaintiff or makes contact that goes beyond what is impliedly consented to

104
Q

What is the qualified privilege of defamation for prospective employers?

A

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
Q

How are damages for conversion calculated?

A

Full value at the time of the conversion

106
Q

What is the effect of res ipsa on a breach of duty?

A

The fact that a particular injury occurred tends to establish the breach of a duty owed

107
Q

Do you need to show actual possession for res ipsa?

A

No

108
Q

Does res ipsa create a presumption of negligence?

A

No, but does not allow defendant to get a directed verdict

109
Q

What is a direct cause case?

A

One where the facts present an uninterrupted chain of events from the time of the defendant’s negligent act to plaintiff’s injury

110
Q

What is not relevant in a direct cause case?

A

The unusual manner in which the injury occurred

111
Q

Are criminal acts of a third party always superseding intervening causes?

A

Depends on the foreseeability.

Ex: If go through a bad area everyday, then it’s foreseeable

112
Q

What is a trespassing animal?

A

Trespass of animal (other than household pet) (Owner strictly liable as long as damage was reasonably foreseeable)

113
Q

Is determining whether something is abnormally dangerous a question of law or fact?

A

Question of law (court can decide it on a motion for directed verdict)

114
Q

When will owner be strictly liable for a domestic animal?

A

When the owner knows of the domestic animal’s dangerous propensities

115
Q

Is an owner liable for the actions of a bull?

A

No because farm animals are domestic

116
Q

In contrast to products liability cases based on negligence, those based on strict liability do not____

A

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
Q

If the defect has inadequate warnings, is the plaintiff entitled to a presumption that an adequate warning would have been read and heeded?

A

Yes

118
Q

Who may a rescuer recover from?

A

The person who created the situation in which the rescue was needed because they made the rescuer a foreseeable plaintiff

119
Q

If person tells independent contractor what to do, can they liable?

A

Yes

120
Q

When can punitive damages be awarded?

A

Only when there is proof of the defendant’s willful or wanton misconduct

121
Q

Can a person use reasonable force to protect another against imminent harm?

A

Yes, this is privileged and not liable for battery

122
Q

How to recover under negligent infliction of emotional distress if defendant injured someone else?

A

close family member and saw it as it happened (contemporaneous)

123
Q

What is insufficient for false imprisonment?

A

Moral pressure or future threats

124
Q

Elements for intentional infliction of emotional distress?

A

1) Extreme and outrageous conduct

2) Severe emotional distress

125
Q

What is extreme and outrageous conduct?

A

Transcends all bounds of decency

126
Q

When will someone be held liable even if person consented?

A

1) mistake if defendant knew and took advantage of the mistake
2) fraud as to an essential element
3) duress

127
Q

Is mistake allowed for self defense?

A

Yes, if reasonable mistake as to the existence of the danger

128
Q

Necessity is a defense only to what types of torts?

A

Property torts

129
Q

What is the name of the rule that police officers and firefighters basically assumed the risk in their job duties?

A

Firefighter’s Rule

130
Q

What is the standard of care for a professional?

A

Same care as the average person in that profession doing similar activity (national standard-need expert witness)

131
Q

When would violation of a statute be excused?

A

1) more danger in complying

2) Compliance is impossible

132
Q

What standard to fall back on if can’t get negligence per se?

A

Reasonably prudent person

133
Q

What are the elements for negligenct infliction of emotional distress if just nearly missed YOU?

A

1) Plaintiff in zone of danger

2) Plaintiff must suffer physical symptoms of distress

134
Q

What is the standard for negligent infliction of emotional distress if special relationship between plaintiff and defendant?

A

Foreseeable that it would cause distress (highly foreseeable)

135
Q

What is the test if multiple causes and either cause could have caused the harm

A

Substantial factor test

136
Q

What if unascertainable who caused the harm?

A

Burden of proof shifts to the defendants

137
Q

Last clear chance is used in what kind of jurisdictions?

A

Contributory negligence jurisdictions

138
Q

What are the elements for strict product liability? Defective products

A

1) D is a merchant
2) Defective product
3) Not substantially altered
4) Foreseeable risk

139
Q

What are the three types of defects for strict product liability?

A

Manufacturing, design, information

140
Q

What is a manufacturing defect?

A

Comes out different than the others

141
Q

What is a design defect?

A

Risk > utility

P must show alternative design that would be safer, practical, economically feasible

142
Q

What is needed for defendant to succeed on an information defect strict product liability claim?

A

Warning was adequate (prominent, comprehensible, provided information about mitigating risk)

143
Q

What are the elements of defamation?

A

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
Q

What is a defamatory statement?

A

One tending to adversely affect one’s reputation

145
Q

If defamatory statement about small group of people, who has a claim?

A

Everyone in that group

146
Q

If defamatory statement against large group, who has aa claim?

A

No one

147
Q

What is plaintiff dead when defamatory statement made?

A

No claim

148
Q

What is the intent in defamation?

A

Intent to publish

149
Q

Is damage presumed in libel?

A

Yes

150
Q

What are the only slander cases that damages are presumed?

A

1) adversely reflect plaintiff’s business/profession
2) State that plaintiff has committed a serious crime
3) State plaintiff has a loathsome disease

151
Q

For a public figures to win on a claim of defamation, what must he show?

A

Actual malice

152
Q

What is actual malice for defamation?

A

Knowledge that the statement was false or reckless disregard as to whether it was false

153
Q

If defamation is based on a matter of public concern (even if private plaintiff), what must be shown?

A

Negligence regarding the falsity

154
Q

If plaintiff shows negligence for claim involving public concern, what damages can he get

A

Actual injury damages

Malice=punitive

155
Q

What are the 4 types of invasions of privacy?

A

1) Appropriation
2) Intrusion
3) False light
4) Disclosure

156
Q

What is appropriation?

A

Invasion of privacy claim in which using plaintiff’s name/image for a commercial purpose

157
Q

What is an exception to appropriation

A

Newsworthiness

158
Q

What is intrusion?

A

Invasion of privacy claim in which there was an invasion of person’s seclusion that would be highly offensive to a reasonable person

159
Q

What is false light?

A

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
Q

What is disclosure?

A

Invasion of privacy claim in which there is widespread dissemination of confidential information (newsworthiness exception applicable)

161
Q

Does duty to warn extend to dangerous conditions that the licensee should reasonably have discovered?

A

No

162
Q

When does unascertainable negligence rule to shift burden apply?

A

When two or more persons are negligent

163
Q

What is the duty of a rescuer?

A

To act reasonably under the emergency

164
Q

What is required for negligent hiring?

A

Some reason to be on notice that the actions that resulted in harm were likely to occur (reasonable employer…)

165
Q

What happens when invitee exceeds where he is allowed to go?

A

Status becomes that of a known trespasser

166
Q

Foreseeability for intentional tort?

A

Nope

167
Q

What is a way in which the owner of a domestic dog would be liable for the acts of the dog?

A

If the defendant knew of his dog’s mischievous propensity

168
Q

What are the elements of a claim for tortious interference?

A

(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
Q

Is using reasonable methods to prevent a nuisance a defense to nuisance?

A

No if still a substantial and unreasonable interference with person’s use or enjoyment

170
Q

Can strict liability be imposed on the seller of a product that is defective or unreasonably dangerous?

A

Yes

171
Q

When can a person recover the whole amount for contribution when even they were negligent?

A

When the other person committed an intentional tort

172
Q

What needs to be shown to prevail on a claim for defamation for a statement made at a public hearing?

A

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
Q

Can a person still be liable if they committed an intentional tort and something unexpected happens?

A

Yes, liable for all harm whether foreseeable or not

174
Q

What must a plaintiff show under any theory of products liability?

A

That the product was defective when the product left the defendant’s control

175
Q

When does duty of care arise in a products liability context?

A

When the defendant engages in the affirmative conduct associated with being a commercial

176
Q

How to prove breach in a negligent products liability case?

A

Negligent conduct by the defendant leading to supplying of a defective product

177
Q

What are the elements for the presumption that the goods were not defective when it was sold to the purchaser?

A

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
Q

What does the retailer need to show in a negligent products liability case?

A

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
Q

When to bring up implied warranties or merchantability and fitness for a particular purpose?

A

“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
Q

What is the warranty of merchantability?

A

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
Q

What are the elements of negligent misrepresentation?

A

1) Misrepresentation
2) breach of duty
3) causation
4) justifiable reliance by the plaintiff on the misrepresentation
5) damages

182
Q

For negligent misrepresentation, who is a duty of cared owed to?

A

Only to those persons to whom the representation was made or specific persons who defendant knew would rely on it

183
Q

What’s a possible defense to vicarious liability?

A

Frolic- not within the scope or course of employment

184
Q

What is needed for forgery?

A

Intent to defraud and the document must have legal significance

185
Q

Can someone recover in strict product liability for the economic loss a person suffered?

A

Under the economic loss doctrine, parties can’t recover from someone when the negligence of another led to pure economic loss

186
Q

If assumption of the risk found, how much in damages can the plaintiff recover?

A

Nothing. Assumption of the risk is a complete defense

MBE (8 decks)

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