MBE TORTS

Question 1

MBE TORTS: Intentional torts involving personal injury; false imprisonment

What needs to be proven to prevail on a false imprisonment claim?

Answer 1

False imprisonment results when a person acts
(i) intending to confine or restrain another within fixed boundaries fixed by the actor: (ii) those actions directly or indirectly result in such confinement; and (iii) the other is conscious of the confinement or is harmed by it.

Question 2

MBE TORTS: Negligence; Duty

What is the liability of a person who negligently puts himself in danger and a rescuer of that person is injured?

Answer 2

A person who comes to the aid of another is a foreseeable PL, and a person who negligently puts himself in danger is liable for his rescuer’s injuries.

A rescuer who takes significant risks when attempting a rescue may also be permitted to recover, even despite of any negligence on the part of the rescuer. However, the rescuer’s recovery may be reduced.

There is no affirmative duty to act. However, this rule would not prevent the man from recovering damages from the person he rescued because he negligently put himself in danger.

Question 3

MBE TORTS: Negligence; Standard of Care

What standard of care is required of a seven year old in a negligence claim? Can a seven year old be found negligent?

Answer 3

The standard of care imposed upon a child, like a seven year old, is that of a reasonable child of similar age, intelligence and experience.

Question 4

MBE TORTS: Negligence; Defenses to Negligence

How is liability calculated in a pure comparative negligence jurisdiction when there are multiple parties that are deemed negligent, including the Pl?

Answer 4

In a pure comparative negligence jurisdiction, the trier of fact calculates the Pl’s full damages and then the damages are reduced by the proportion that his fault bears to the total harm.

If the act of two or more persons combine to produce a single harm, each is liable for the entire amount. The Pl may collect from one or both Defendants. Then that award will be reduced by the proportion of negligence attributable to the Pl.

**Joint and several liability: the Pl can recover the full amount of damages from either Defendant, not just the amount representing each D’s portion of the total damages.

Question 5

MBE TORTS: Harms to personal property and land; Trespass to land

What needs to proven to bring a trespass to land tort claim?

Answer 5

Trespass to land occurs when the Defendant’s intentional act causes a physical invasion of the land of another. The defendant need not know that the land belongs to another.

It must be proven that the Defendant had the intent to enter the land, not the intent to commit a wrongful trespass.

Question 6

MBE TORTS: Negligence; Causation

What must a PL prove for a successful negligence claim? When there are multiple Defendants that contributed to the Plaintiff’s injuries, how would the Pl prove that his injury would not have occurred but for the Defendant’s conduct?

Answer 6

In order to prove negligence, the plaintiff must establish that the defendant’s actions were both the actual cause and the proximate cause of the plaintiff’s injury.

Generally, the plaintiff must show that his injury would not have occurred but for the defendant’s conduct. When multiple defendants have contributed to the plaintiff’s injury, the plaintiff may establish causation by showing that the defendant’s conduct was a SUBSTANTIAL FACTOR in causing the plaintiff’s injury, and the plaintiff could recover against either or both of them.

Under joint and several liability, when two or more persons are responsible for a plaintiff’s harm, the plaintiff may sue any one of them and obtain a full judgment.

Under a system of pure several liability, a tortfeasor is generally only liable for his comparative share of the plaintiff’s damages.

Question 7

MBE TORTS: Intentional torts involving personal injury; Intentional Infliction of Emotional Distress

When a defendant intentionally or recklessly acts with extreme and outrageous conduct and the plaintiff suffers severe emotional distress, what tort doctrine offers the plaintiff the best chance of recovery?

Answer 7

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

There is no imminence requirements for IIED like there is for the tort of assault.

Question 8

MBE TORTS: Intentional torts involving personal injury; assault

In an action for assault, what must a plaintiff establish in order to succeed on his claim?

Answer 8

An assault is the plaintiff’s reasonable apprehension of an IMMINENT (without significant delay) harmful or offensive contact caused by the defendant’s action or threat with the intent to cause either the apprehension of such contact or the contact itself.

Threats of future harm are insufficient, as are threats made by a defendant too far away to inflict any harm.

Question 9

MBE TORTS: Negligence; Special rules of liability

When can a plaintiff recover for negligent infliction of emotional distress?

Answer 9

A plaintiff can recover for negligent infliction of emotional distress from a defendant whose tortious conduct placed the plaintiff in harm’s way if the plaintiff demonstrates that:
(i) he was within the “zone of danger” of the threatened physical impact–that he feared for his own safety because of the defendant’s negligence; and
(ii) the threat of physical impact caused emotional distress.

However a bystander plaintiff who is outside the zone of danger can still recover if he/she is closely related to the person injured by the defendant, he/she was present at the scene of the injury, and he/she personally observed (or otherwise perceived) it. - Bystander can recover un a theory of NIED.

Question 10

MBE TORTS: Strict Liability; Animals

Can an owner of a wild animal be held liable for a plaintiff’s injuries that result from the plaintiff’s fearful reaction to the sight of the unrestrained wild animal?

Answer 10

Strict liability applies to an injury caused by a plaintiff’s fearful reaction to the sight of an unrestrained wild animal, in addition to injuries caused directly by the wild animal.

Question 11

MBE TORTS: Negligence; Duty

Can a person be held liable for failure to rescue someone?

Answer 11

Generally, there is no duty to act affirmatively, even if the failure to act appears to be unreasonable. However, there are a few exceptions to this rule.

These include when a person voluntarily aids or rescues another, places another in peril. has a contractual obligation to another, has a special relationship with another or is in a position of authority to control another. In those situations, the individual does have a duty to act.

Question 12

MBE TORTS: Negligence; Vicarious liability

When is an employer liable for the actions of an employee?

Answer 12

An employer is liable for the tortious conduct of an employee that is within the scope of employment. Conduct within the scope of employment includes that which the employee is employed to perform or which is intended to profit or benefit the employer.

An employer may be liable for a tort committed by an employee during the employee’s detour (a minor and permissible deviation from the scope of employment) but not during the employee’s frolic (an unauthorized and substantial deviation).

Question 13

MBE TORTS: Intentional torts involving personal injury; battery

When is a person liable for the tort claim of battery?

Answer 13

One is liable for battery when he intentionally causes a harmful or offensive contact with the person of another and acts with the intent to cause such contact or the apprehension of such contact.

Contact with the plaintiff’s person includes contact with anything closely connected to the plaintiff’s person.

Question 14

MBE TORTS: Defenses to Intentional Torts Involving Personal Injury; Self-Defense

What defense is available to a defendant against a claim for battery when the defendant ended up injuring the plaintiff, but intended to injure another person?

Answer 14

A person may use deadly force to defend himself IF he has a reasonable belief that force sufficient to cause serious bodily injury or death is about be intentionally inflicted upon him.

While the defendant did not intend to injure the plaintiff, his intent to injure the third person causing the serious bodily injury, the doctrine of transferred intent is negated if the defendant used force necessary to defend himself from serious bodily injury or death.

One who acts in self-defense is not liable for accidental injuries to bystanders that occur while he is reasonably acting in self-defense.

Question 15

TORTS - NEGLIGENCE PER SE

When there is a statute in place, intending to prevent a certain type of harm that the Pl suffered, (i.e. texting while driviing and then getting injured by a driver from behind), would the doctrine of negligence per se apply in a contributory negligence jurisdiction and bar a Pl’s recovery?

Answer 15

In traditional contributory negligence jurisdictions (as seen here), a plaintiff’s failure to use reasonable care for his/her own safety is a complete defense to negligence. One way the defendant can establish the plaintiff’s failure to use reasonable care is through the doctrine of negligence per se. Under this doctrine, the plaintiff’s negligence is presumed if:

the plaintiff violated a statute
the statute was intended to prevent the type of harm suffered by the plaintiff and
the plaintiff is within a class of persons that the statute was intended to protect.
However, even when negligence per se is established, the defendant still must prove that the plaintiff’s violation of the statute caused the plaintiff’s harm.

Question 16

TORTS MBE - COMPARATIVE NEGLIGENCE AND JOINT AND SEVERAL LIABILITY

EXPLAIN WHAT OCCURS UNDER PURE COMPARATIVE NEGLIGENCE. THEN IF THERE ARE MULTIPLE DEFENDANTS, WHAT HAPPENS WHEN JOINT AND SEVERAL LIABILITY APPLIES?

Answer 16

Under pure comparative negligence, a negligent plaintiff’s recovery is reduced by his/her proportionate share of fault. And if multiple defendants cause the plaintiff indivisible harm, joint and several liability allows the plaintiff to recover the total amount of damages from any defendant.

Question 17

TORTS MBE - VICARIOUS LIABILITY

CAN AN EMPLOYER WHO IS VICARIOUSLY LIABLE FOR A TORT COMMITTED BY ITS EMPLOYEE SEEK FULL COMPENSATION FROM THE EMPLOYEE FOR ITS LOSS?

Answer 17

An employer who is vicariously liable for a tort committed by its employee may be liable to the plaintiff for the harm caused by the employee’s tortious conduct. When the employee’s liability has been discharged by the employer, the employer can seek full compensation (i.e., indemnity) from the employee for its loss.

Question 18

TORTS MBE - TRESPASS TO CHATTELS

WHEN THE PL BRINGS AN ACTION FOR TRESPASS TO CHATTELS, WHAT SORT OF DAMAGES MUST HE SHOW?

I READ THAT DISPOSSESSION OF A CHATTEL THROUGH DISPOSSESION IS ENOUGH AND NOMINAL HARM IS INFERRED WHEN THE INTERFERENCE IS THROUGH DISPOSSESSION.

Answer 18

Trespass to chattels occurs when the defendant intentionally interferes with the plaintiff’s possession of a chattel through dispossession, use, or intermeddling (i.e., causing physical contact). Nominal harm is inferred when the interference is through dispossession. But when the interference is through use or intermeddling, the plaintiff must prove actual damages through one of the following:

actual harm to the chattel (i.e., impairment of its physical condition, quality, or value)
substantial loss of use of the chattel or
bodily harm to the plaintiff (Choice C).

Question 19

TORTS MBE - FIREFIGHTERS’ RULE AND THE RESCUE DOCTRINE

WHEN DOES THE FIREFIGHTERS’ RULE BAR PROFESSIONAL RESCUERS FROM RECOVERING FOR HARM? WHEN DOES THE FIREFIGHTERS’ RULE NOT APPLY AND THE FIREFIGHTER COULD RECOVER?

Answer 19

Under the rescue doctrine, persons who negligently endanger themselves or others are liable for injuries sustained by rescuers. But the rescue doctrine is limited by the firefighter’s rule, which applies to all professional rescuers (e.g., firefighters, police officers). This rule bars professional rescuers from recovering for harm that resulted from the special dangers of their jobs—e.g., a firefighter extinguishing a fire.

However, the firefighter’s rule does not bar recovery for harm that resulted from a land possessor’s failure to warn professional rescuers about concealed dangers known to the land possessor. That is because professional rescuers are considered licensees. As a result, a land possessor who breaches this duty and causes the professional rescuer physical harm is liable for negligence.

Question 20

TORTS MBE - BUSINESS INVITEES AND SCOPE OF THE LANDOWNERS DUTIES

WHAT IS THE DUTY OWED TO A BUSINESS INVITEE WHEN HE EXCEEDS THE SCOPE OF THE INVITATION?

Answer 20

Under the traditional common-law approach,* land possessors owe a duty of reasonable care to foreseeable land entrants, including invitees who enter the land for a business purpose (e.g., to play miniature golf). An invitee becomes a trespasser if that person intentionally enters an area without permission. And if that person is a known or anticipated trespasser, then the land possessor owes a limited duty to:

warn the trespasser about, or protect the trespasser from, hidden, artificial dangers that are known to the land possessor but unlikely to be discovered by the trespasser and

use reasonable care in active operations conducted on the land.

A land possessor who breaches this duty and causes the trespasser physical harm is liable for negligence.

Question 21

TORTS MBE - FIREFIGHTERS’ RULE

WHAT IS THE FIREFIGHTERS’ RULE?

Answer 21

The firefighter’s rule bars emergency professionals from recovering for harm that resulted from a risk inherent to their jobs. However, such professionals may recover for harm caused by another’s negligence if the harm did not result from a risk inherent to the professional’s job.

Question 22

TORTS MBE - PRIVATE NUISANCE

GIVE THE RULE FOR MAKING A CLAIM FOR A PRIVATE NUISANCE.

Answer 22

A defendant is liable for private nuisance when the defendant’s interference with the use and enjoyment of the plaintiff’s property is both:

substantial – offensive, annoying, or intolerable to a normal person in the community and

unreasonable – the severity of the plaintiff’s harm outweighs the utility of the defendant’s conduct.

Question 23

REAL PROPERTY MBES - MERGER DOCTRINE

EXPLAIN THE MERGER DOCTRINE AS IT PERTAINS TO LAND SALE CONTRACTS AND DEEDS.

Answer 23

Under the merger doctrine, a contract for the sale of land merges with the deed, and any obligations contained in the contract can only be enforced if they are incorporated into the deed.

Question 24

REAL PROPERTY MBES - DUE ON SALE CLAUSES

ARE THERE ANY EXCEPTIONS TO THE ENFORCEABILITY TO A DUE-ON-SALE CLAUSE IN A LOAN AGREEMENT?

Answer 24

Due-on-sale clause affecting residential property

(common exceptions to enforceability)

Devise, descent, or transfer to joint tenant upon death
Transfer to spouse or child
Transfer to ex-spouse in divorce
Transfer to borrower’s living trust
Creation of subordinate lien without occupancy rights
Granting leasehold interest of less than 3 years without option to purchase
When a due-on-sale clause appears in a mortgage loan agreement, the mortgagee (the thrift institution) can demand payment in full of the remaining mortgage debt if the mortgagor (the homeowner) transfers the mortgaged property without the mortgagee’s consent. If the mortgagor cannot pay, then the mortgagee can foreclose on the mortgaged property to satisfy the unpaid debt.

Question 25

REAL PROPERTY MBES - RIGHTS OF FIRST REFUSAL

WHAT IS A RIGHT OF FIRST REFUSAL?

Answer 25

A right of first refusal (ROFR) is a preemptive right that gives its holder the opportunity to acquire property from a seller before it is transferred to a third party. Such a provision is valid if it complies with the statute of frauds—i.e., is in a writing that is signed by the party to be charged and contains all essential terms—and its terms are reasonable. Reasonableness is determined by balancing the utility of the purpose served by this restraint against the likely harm that would result from enforcing it.

Question 26

REAL PROPERTY MBES - JUDGMENT CREDTIORS AND BFPS

Answer 26

Judgment creditors are not purchasers for value since the attachment of a judgment lien to a debtor’s property is merely security for a preexisting debt—not payment of value.

Question 27

REAL PROPERTY MBES - RIGHT OF FIRST REFUSAL

WHAT IS A RIGHT OF FIRST REFUSAL? IS IT SUBJECT TO THE RULE AGAINST PERPETUITIES?

Answer 27

A right of first refusal is a contractual right to purchase property before any other person if the owner later decides to sell, so it is a contingent future interest that is generally subject to the Rule Against Perpetuities (RAP).* RAP renders such interests void if there is any possibility that they could vest or fail more than 21 years after the end of some life in being at the creation of the interest (here, the grandmother’s life). Therefore, RAP will help determine whether the grandmother will be able to enforce the right-of-first-refusal clause.

Question 28

REAL PROPERTY MBES - DOCTRINE OF EQUITABLE CONVERSION

EXPLAIN THE DOCTRINE OF EQUITABLE CONVERSION

Answer 28

Under the doctrine of equitable conversion, a buyer receives equitable title to real property upon entering a land-sale contract. In contrast, the seller retains legal title and acquires the equitable right to receive the purchase price upon closing. As a result, a judgment obtained against the seller after the execution of the land-sale contract is not enforceable against the real property—even if the claim arose before the contract was executed.

Question 29

REAL PROPERTY MBES - LANDOWNER’S RIGHT TO SUBJACENT SUPPORT

WHEN CAN AN OWNER OF MINERAL RIGHTS BE LIABLE TO THE SURFACE OWNER FOR SUBSIDENCE AND FAILURE TO SUPPORT THE NEIGHBORING LAND AND BUILDINGS THAT EXISTED?

Answer 29

The right to subjacent support—i.e., support from beneath the surface of land—arises when the owner of land grants the right to mine minerals to a third party. The owner of the mineral rights may be:

strictly liable to the surface owner for any failure to support the land and any buildings that existed on the land at the time the mineral rights were conveyed (provided that the damage would have occurred in the land’s natural state) or

liable for negligence for any damage to improvements built after the mineral rights were conveyed.

Question 30

REAL PROPERTY MBES - VALID DEEDS AND NONEXISTENT GRANTEES

WHEN A DEED TRANSFER NAMES A NONEXISTENT GRANTEE, WHAT HAPPENS? IF THE PARTIES WERE ATTEMPTING TO CONVEY A 1/2 AND 1/2 TENANCY IN COMMON, WHAT HAPPENS TO THIS TENANCY IN COMMON INTEREST?

Answer 30

A deed is a legal instrument that transfers an ownership interest in real property. To be valid, a deed must:

be in writing and signed by the grantor (but not the grantee)*
unambiguously identify the grantor and the grantee
unambiguously describe the land and
include words of transfer.
A deed that names a nonexistent grantee is void as to that nonexistent grantee. So if a nonexistent grantee was conveyed an interest in a tenancy in common, then the grantor would retain the nonexistent cotenant’s interest and have a tenancy in common with the other cotenant(s) named in the deed.

Question 31

REAL PROPERTY MBES - ZONING VIOLATIONS

WHAT CAN THE BUYER DO IN A LAND SALE IF THE SELLER CANNOT CONVEY MARKETABLE TITLE? CAN A ZONING VIOLATION CLOUD TITLE–MAKE IT UNMARKETABLE?

Answer 31

All contracts for the sale of land have an implied warranty that the seller will convey marketable title to the buyer upon closing unless otherwise stated. To be marketable, title must be reasonably free from doubt and under no threat of litigation, such that a reasonable person would accept and pay for it.

If the seller cannot convey marketable title (e.g., due to a zoning violation), the buyer can rescind the contract and refuse to close. The buyer can also choose to accept the land with the defect and enforce the contract—as the buyer seeks to do here (Choice B). If the seller refuses to perform, then the buyer can:

rescind the contract and seek restitution
seek specific performance with an abatement of the purchase price* or
sue for damages.
Specific performance is only available when money damages are inadequate. Since land is considered unique and money damages cannot compensate for the loss of unique property, this remedy is generally available to buyers of land. And since the seller refused to transfer title upon closing, the buyer will likely prevail in this suit for specific performance.

Question 32

REAL PROPERTY MBES - DOCTRINE OF SUBROGATION

EXPLAIN THE DOCTRINE OF SUBROGATION.

Answer 32

Under the doctrine of subrogation, a third party (subrogee) who pays another’s mortgage loan in full becomes the owner of the loan and the mortgage. The subrogee may therefore seek reimbursement from the debtor or enforce the mortgage.