MBE torts Flashcards
Elements of Assault:
(1) act by defendant that created reasonable apprehension of battery; (2) defendant intended to bring about the reasonable apprehension; and (3) causation
Elements of false imprisonment:
(1) plaintiff was confined in a bounded area; (2) defendant intended to confine the plaintiff; and (3) causation
Elements of Trespass to Chattels:
(1) defendant intentionally; (2) interferes w/ plaintiff’s use or possession of personal property; and (3) actual harm if defendant doesn’t take the property out of the plaintiff’s possession
When is self-defense available?
person reasonably believes they are being/ about to be attacked; can use force reasonably necessary under the circumstances to protect against injury
An attractive nuisance exists where:
(1) defendant is aware, or should be aware that artificial condition poses a risk to children of serious injury/ death; (2) defendant knows/has reason to know children will enter land; (3) children wouldn’t realize the danger of the condition; and (4) risk of harm is great compared to cost of eliminating the dangerous condition
What are the theories of products liability?
(1) negligence; (2) strict product liability; (3) implied warranty of merchantability and fitness for particular purpose; (4) express warranty; and (5) misrepresentation
To prevail on a strict product liability claim, plaintiff must show:
(1) D was commercial supplier; (2) product was defective; (3) product wasn’t substantially altered after leaving the factory; and (4) plaintiff made foreseeable use
Is privity required in products liability actions?
No- the whole chain of distribution (manufacturer, seller, retailer) may be held liable; and users, consumers, and bystanders can sue
How can a plaintiff prove a product is defective?
showing the product has a manufacturing defect, a design defect, or an information defect
When is a product defectively manufactured?
it is dangerous beyond the expectations of the ordinary consumer because of a departure from properly made products
When may a product have a design defect?
If the product has dangerous propensities and plaintiff can show the defendant could have made the product safer without serious impact on utility
When does a product have an information defect?
Failure to include adequate warnings/ instructions of the risks involved when using the product that may not be apparent
What damages are recoverable under a strict product liability theory?
physical injury or property damages; sole claim cannot be economic loss
What are the elements of a negligence products liability claim?
(1) duty; (2) breach; (3) actual and proximate cause; and (4) damages
How is a duty breached in a negligent products liability claim?
negligent conduct by defendant leading to supplying a defective product
Implied warranty of merchantability and fitness
- Implied in every sale of goods
- Merchantability = breach occurs if sale of goods is not generally acceptable or fit for ordinary purpose
- Fitness= breach occurs if sale of goods is not fit for the purpose seller knows/ has reason to know for which the goods are required and buyer is relying on seller’s judgment to pick the goods
Under a theory of implied warranty of merchantability and fitness for a particular purpose, must the plaintiff prove the defendant is at fault?
No- if product fails to meet standards imposed by either of the implied warranties, the defendant will be liable
What are the elements for misrepresentation is a strict liability claim?
(1) D is seller of such products; (2) D made misrepresentation of a material fact; (3) D intended to induce reliance on the misrepresentation; (4) justifiable and actual reliance by plaintiff on the misrepresentation; and (5) causation and damages
Doctrine of Vicarious Liability for Employer-Employee
-Employer is liable for tortious acts committed by employee within the scope of employment UNLESS employee has substantially deviated from employer’s business for their own purpose; or the employee has committed an intentional tort
When may an employer be vicariously liable for its employee’s intentional torts?
(1) acting to further business of the employer; (2) force is a part of the employment (i.e. security guards); (3) friction is generated by the employment
Assumption of Risk defense:
- complete defense (I.e. if defendant prevails in raising the defense, defendant will not be liable)
- traditional rule of apportioning fault does not apply because it is a complete defense
- plaintiff will be denied recovery under the defense if (1) knew of the risk; and (2) voluntarily proceeded in the face of the risk
What does plaintiff have to demonstrate to prevail on a strict product liability claim based on misrepresentation:
that the misrepresentation made was one of material fact concerning the quality/ nature of the product and plaintiff’s reliance on the misrepresentation resulted in injury
When may a bystander recover for negligent infliction of emotional distress?
(1) plaintiff and person injured by Defendant’s negligence are closely related; (2) plaintiff was personally present at the scene of the injury; and (3) plaintiff observed/ perceived the event
What are the elements for Fraud?
(1) Defendant made a misrepresentation; (2) defendant knew misrepresentation was false; (3) defendant intended to induce plaintiff’s reliance on the misrepresentation; (4) plaintiff did rely on the misrepresentation; and (5) pecuniary damages
When may a defendant have a qualified privilege defense to defamation claim?
(1) if the recipient has an interest in the information (i.e. former employer making remarks about a former employee to prospective employer); (2) statement to defend ones own actions, property or reputation; (3) reports of public hearings; or statements made to an officer taking official action
Rules for defamation based on libel:
- Libel is written/ printed defamation
- generally plaintiff doesn’t need to prove special damages to recover
- general damages are presumed
Private Nuissance:
- (1) substantial; and (2) unreasonable interference with another private individual’s use or enjoyment of their land that is (3) offensive/ annoying to a person of average sensibilities
- Plaintiff can establish unreasonable interference by showing injury outweighs utility to defendant
Elements of Battery:
(1) act by defendant resulting in harmful or offensive contact to plaintiff’s person; (2) intent on part of the defendant to bring about the harmful/ offensive contact; and (3) causation
Whether a contact is considered harmful/ offensive for purposes of a battery is:
judged by the standard of a reasonable person of ordinary sensibilities
Under the doctrine of transferred intent:
the intent to commit one tort serves as the intent requirement for another tort (i.e. defendant only intended to commit assault but completed a battery- intent will transfer to the battery)
Self Defense:
- may be used when defendant has reasonable grounds to believe he is being or is about to be attacked
- can use or threaten to use force reasonably necessary to protect against the potential harm
What is outrageous conduct (for an IIED claim)?
conduct that transcends all bounds of decency tolerated by society
Elements of IIED:
(1) act by the defendant amounting to extreme and outrageous conduct; (2) intent to cause plaintiff to suffer severe emotional distress or recklessness to the effect of defendant’s conduct; (3) causation; and (4) damages
What damages does plaintiff have to show in an IIED claim?
damages in the form of severe emotional distress; physical injury or symptoms is not required
What are the elements of Res Ipsa?
Plaintiff must prove (1) defendant was in exclusive control of the object that caused the injury; (2) plaintiff was not negligent; and (3) an inference of negligence (I.e. the accident would not normally occur unless someone was negligent)
What is the effect of res ipsa?
It allows the jury to infer that the defendant was probably negligent based on circumstantial evidence
Generally, intentional torts is not within the scope of employment UNLESS
force is authorized as part of the job, friction is generated as part of the job, or the employee is furthering the business of the employer
