MBE torts

Question 1

Elements of Assault:

Answer 1

(1) act by defendant that created reasonable apprehension of battery; (2) defendant intended to bring about the reasonable apprehension; and (3) causation

Question 2

Elements of false imprisonment:

Answer 2

(1) plaintiff was confined in a bounded area; (2) defendant intended to confine the plaintiff; and (3) causation

Question 3

Elements of Trespass to Chattels:

Answer 3

(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

Question 4

When is self-defense available?

Answer 4

person reasonably believes they are being/ about to be attacked; can use force reasonably necessary under the circumstances to protect against injury

Question 5

An attractive nuisance exists where:

Answer 5

(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

Question 6

What are the theories of products liability?

Answer 6

(1) negligence; (2) strict product liability; (3) implied warranty of merchantability and fitness for particular purpose; (4) express warranty; and (5) misrepresentation

Question 7

To prevail on a strict product liability claim, plaintiff must show:

Answer 7

(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

Question 8

Is privity required in products liability actions?

Answer 8

No- the whole chain of distribution (manufacturer, seller, retailer) may be held liable; and users, consumers, and bystanders can sue

Question 9

How can a plaintiff prove a product is defective?

Answer 9

showing the product has a manufacturing defect, a design defect, or an information defect

Question 10

When is a product defectively manufactured?

Answer 10

it is dangerous beyond the expectations of the ordinary consumer because of a departure from properly made products

Question 11

When may a product have a design defect?

Answer 11

If the product has dangerous propensities and plaintiff can show the defendant could have made the product safer without serious impact on utility

Question 12

When does a product have an information defect?

Answer 12

Failure to include adequate warnings/ instructions of the risks involved when using the product that may not be apparent

Question 13

What damages are recoverable under a strict product liability theory?

Answer 13

physical injury or property damages; sole claim cannot be economic loss

Question 14

What are the elements of a negligence products liability claim?

Answer 14

(1) duty; (2) breach; (3) actual and proximate cause; and (4) damages

Question 15

How is a duty breached in a negligent products liability claim?

Answer 15

negligent conduct by defendant leading to supplying a defective product

Question 16

Implied warranty of merchantability and fitness

Answer 16

• 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

Question 17

Under a theory of implied warranty of merchantability and fitness for a particular purpose, must the plaintiff prove the defendant is at fault?

Answer 17

No- if product fails to meet standards imposed by either of the implied warranties, the defendant will be liable

Question 18

What are the elements for misrepresentation is a strict liability claim?

Answer 18

(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

Question 19

Doctrine of Vicarious Liability for Employer-Employee

Answer 19

-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

Question 20

When may an employer be vicariously liable for its employee’s intentional torts?

Answer 20

(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

Question 21

Assumption of Risk defense:

Answer 21

• 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

Question 22

What does plaintiff have to demonstrate to prevail on a strict product liability claim based on misrepresentation:

Answer 22

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

Question 23

When may a bystander recover for negligent infliction of emotional distress?

Answer 23

(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

Question 24

What are the elements for Fraud?

Answer 24

(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

Question 25

When may a defendant have a qualified privilege defense to defamation claim?

Answer 25

(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

Question 26

Rules for defamation based on libel:

Answer 26

• Libel is written/ printed defamation
• generally plaintiff doesn’t need to prove special damages to recover
• general damages are presumed

Question 27

Private Nuissance:

Answer 27

• (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

Question 28

Elements of Battery:

Answer 28

(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

Question 29

Whether a contact is considered harmful/ offensive for purposes of a battery is:

Answer 29

judged by the standard of a reasonable person of ordinary sensibilities

Question 30

Under the doctrine of transferred intent:

Answer 30

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)

Question 31

Self Defense:

Answer 31

• 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

Question 32

What is outrageous conduct (for an IIED claim)?

Answer 32

conduct that transcends all bounds of decency tolerated by society

Question 33

Elements of IIED:

Answer 33

(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

Question 34

What damages does plaintiff have to show in an IIED claim?

Answer 34

damages in the form of severe emotional distress; physical injury or symptoms is not required

Question 35

What are the elements of Res Ipsa?

Answer 35

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)

Question 36

What is the effect of res ipsa?

Answer 36

It allows the jury to infer that the defendant was probably negligent based on circumstantial evidence

Question 37

Generally, intentional torts is not within the scope of employment UNLESS

Answer 37

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