MBE Torts Flashcards
Traditional Duty for land owners
Licenses
Invites
Trespassers
Landlord Tenant
Protect from reasonable attacks
Attractive Nuesuence
Special duty for Children
- autoficial condition and know children come
- unreasonable risk
- children can not appreciate risk
- burden to make safe is less than the harm
Duty of Child
reasonable child of the same age, except engaged in an adult activity
Professionals
Another professional in the same community
Doctors
Doctor owes duty to perform based on NATIONAL standard
3 factors of Breach
- Foreseeability
- Severability of Harm
- Burden on the Defendent to prevent harm
Res Ispa Loquiter
Need a situation of no direct evidence of negligent conduct, but an injury occurs.
P injury would not occur unless someone was negligent. P must show D was in exclusive control.
P had no role in causing its own injury
Negligence per se
When have a statute, bring up.
Failure to meet statute could be a breach.
(write statute out, then decide 1. is P in the class of person designed to protect and 2. P suffered the type of harm to be prevented by statute)
Proximate Cause
injury foreseeable
intervening cause- an outside force or action that contributes to P harm that may cut off D liability.
Actual Cause
P must show “but-for” D action, injury would not have occured.
If substantial cause, then can be blamed.
If multiple tort feases, then can shift burden to D to show it was not them.
Negligence Damages
actual damages and not just economic loss.
liable for full injury, even if extent of injury isn’t foreseeable.
Defenses to Negligence
- Contributory Negligence
- assumption of risk
NIED
- P in Zone of Danger
- Bodily harm or manisfestion
NEID Bystander
- within zone of danger or
- family member and not in zone of danger can still recover
Strict Liability
- abnormally dangerous activity
- Wild animal
- product liability
Abnormally dangerous activity and defenses
(1) High risk of harm (2) not commonly found in community and (3) has a risk that can not be done with due car.
Defenses
- Assumption of risk
Wild Animal
Wild animal or a domestic animal that the owner knows has a dangerous propinsity
Strict product liability
D who is in the professional business of selling is liabile if a defective product foreseeable damages P
- Manufactorer, reseller, retailer
- defective product
- proximate cause- use in foreseeable way
- damages- personal injury or property damages
- Damages
Defective product
- manufacting defect- one time defect produced during manufactoring
- design defect- product is created as intended but design it self is wrong.
consumer expectation test- dangerous beyond an ordinary consumer
risk utility- a reasonable alternative design was availible and the failure to use made the design dangerous.
- No warning or failures to warn of foreseeable risk of harm
Defenses Strict Liability
- P knows of defect and still uses product
- P assumes risk
- warrenty (express, implied,
Deformation Elements
- Of or concerning P
- Published by third party
- Damages
Defamatory Language
Harms P reputation
of or concerning P
Clear to a reasonable person that statement was about them
Liable vs. Slander
Liable assume damages, but slander do not.
Public vs. private individual
private-
Public
COnstitutional Defemation requirements
if P is a public official/figure or private individual but statements are public concern then have to prove the below elements
- False
- Fault, but diffeent standard to earlier
- D acted with malice and had knowledge that the statement was false or acted negligently in not finding out if true.
4.
Defenses to Defamation
- truth
- consent
- absolute/qualified privledge
Misappropriation
P use of name/likelessness without persmission for own commercial gain
intrusion upon secclusion
If D intrudes on P affairs and to a reasonable person would be objectionable.
False Light
If D publishes facts about P that place P in false light that would be reasonable offensive to a person.
Public disclosure of private facts
Publish facts that would be highly offensive and the public has no right to know.
