MBE Torts

Question 1

Battery

Answer 1

Harmful or offensive contact (objective stn), to person of another, causation, and D’s Intent. Intent is either single intent (maj) or double intent.

Question 2

Assault

Answer 2

act or threat by D intended to cause apprehension of imminent harm or offensive contact. Conduct or other circs (words not enough), P must have reasonable apprehension and awareness of D’s act or threat, imminent threat of harm, and intent.

Question 3

IIED

Answer 3

Intent or recklessness, extreme and outrageous conduct by D, causation, and damages.

Question 4

False Imprisonment

Answer 4

Intent to confine or restraint within boundaries, confinement, victim is conscious of confinement or harmed by it.

Question 5

Defense of Consent

Answer 5

Consent can be express, implied, or invalid

Question 6

Defense of Self-Defense

Answer 6

reasonable force proportionate to anticipated harm is ok. This can be reasonably mistaken as well. Deadly force only ok if rsbl belief of serious bodily injury/death. Maj is no duty to retreat. As long as not negligent, injuries to bystandars ok if accidental.

efense of others also is here if rsbl belief and rsbl force.

Question 7

Defense of Property

Answer 7

NO deadly force. rsbl force allowed. rsbl force to prevent entry to land generally ok unless necessity. rsbl force to reclaim wrongfully taken prop is also ok.

Question 8

Defense of Parental discipline

Answer 8

ok confinement considering age of child and gravity of behavior. Educator has same priv unless parent restricts priv.

Question 9

Defense of Arrest

Answer 9

If misdemeanor can only contain if committed in presence of arresting party. If felony, priv ok if actually committed and rsbl to suspect person arrested committed it. Police ok for felonis if rsbl to believe it was committed and to suspect the person arrested.

Question 10

Trespass to Chattels

Answer 10

intentional interference with a P’s right of possession. only intent to do act is necessary. Mistake not a defense.

Question 11

Conversion

Answer 11

intentional act, interference with P’s right of possession, so serious that it deprives P of the use of the chattel., damages. transferred intent not good here. mistake not a defense.

Question 12

Trespass to land

Answer 12

intent to enter or cause physical invasion, physical invasion of prop, proper P (in actual or constuctive possession), necessity can be a defense. Priv necessity when enter to protect own person/property from serious harm but still liab for damages to prop. Pub necessity when averting iminent public disaster, not liab if actions rsbl or rsbl belief that necessity existed.

Question 13

Priv Nuisance

Answer 13

sub and unrsbl interference with another’s use or enjoyment of his land. Prop P with possessory rights. Interference must be intentional, neg, reckless, or result of dangerous conduct. Substantial is offensive to avg person in community (objective). unrsbl means usefulness outweighed by injury. Defenses can be reg compliance and coming to the nuisance.

Something else here about abatement for priv and pub nuisance?

Question 14

Pub nuisance

Answer 14

unrsbl interference with right of general public. Proper P needs a different in kind harm from general public.

Question 15

Negligence Generally

Answer 15

Elements are Duty (obli to protect another against unreasonable risk of injury), Breach (failure to meet that obli), Causation (close causal connection between action and injury), and Damages (loss suffered).

Question 16

Duty Generally

Answer 16

Owned to all foreseeable eprsons who may be inj by D’s failure to meet rsbl stn of care, foreseeability of harm to another sufficient to create general duty to act with rsbl care.

No general to act.

Maj follows zone of foreseeable harm, min is D owed duty to everyone harmed.

Special ruels for rescuers and fetuses? Can assume duty to at in a lot of ways.

Question 17

Stn of Care generally

Answer 17

generally rsbl prudent person - objective stn. physical characteristics considered rsbl. Children get special rules, like look to children of similar age, intelligence, and experience. Children are occassionally treated like adults, and kids under 5 generally can’t be negligent.

Question 18

Specific Stn of Care

Answer 18

common carriers get high duty.

Innkeepers get ordinary neg usually.

Auto drivers get ordinary care to guests as well as passengers.

Bailor and Bailee depends on gratuitous (lower stn) vs compensated (higher stn) and baliee also matters if mutual benefit (rsbl care).

Sellers of prop must disclose known, concealed, unrsble dangerous conditions.

Question 19

Stn for possessors of land - trespassers

Answer 19

for Trespassers, avoid willful or wanton misconduct. watch out for discovered dangerous conditions.

Attactive Nuisance is liab for injuries to trespassing kids if artificial condition poses unrsbl risk of serious bodily injury, children cannot appreciate the danger, burden of elim danger slight compared to risk, and owner fails to exercise rsbl care to protect kids.

Question 20

Stn for possessors of land - invitees

Answer 20

rsbl care to inspect and protect from dangerous conditions. Duty not beyond scope of invite. recreational land invite can get exception unless charge fee or acts willfully or gross neg.

Question 21

Stn for possessors of land - Licensee

Answer 21

warn of concealed dangers that are known or should be obvious. use rsbl care

Question 22

Modern and Third Restatement Approach to Care (min)

Answer 22

rsbl care under all circs. Trespass considered for jury. Duty to not act intentional, willful, or wanton manner causing physical harm for flagrant trespasser.

Question 23

Stn for possessors of land - LL and T

Answer 23

L liable for injuries in common areas from hidden dangerous or hazards caused from neg repair.

Question 24

Stn for possessors of land - off-premises victims

Answer 24

no duty for natural condition but duty to prevent unrsbl risk caused by artificial condition.

Question 25

Breach generally

Answer 25

Burden of proof is preponderance of evidence. greater probability than not that D failed to meet stn of care. That failure was prox cause and p suffered damages.

Traditionally means compare d’s condcut with rsbl prudent person under the circs (objective).

Modern is cost benefit analysis. Consider foreseeable likelihood of causing harm, foreseeable severity of harm, and D’s burden in avoiding the harm.

Question 26

Custom in Breach

Answer 26

generally admissible.

For professionals, look to similiar practitioners in same community. Specialists get higher stn. Deviation is dispositive. Expert usually needs to show stn of care.

For Physicians, maj rule is national stn. Min rule is locale stn. Failure to comply with informed consent is negligence unless an exception applies.

Question 27

Neg Per Se

Answer 27

elements are crim or reg statute imposes a specific duty for protection of others, D Neglects to perform, d liable to anyone in class intended to be protected, and for harms the statute was intended to protect.

Cause is D liable for injuries that were prox caused by D’s violation.

Defenses are here.

Question 28

Res Ipsa Loquitur

Answer 28

inference of neg. P’s harm would not have occured if D used ordinary care, P not responsible for injury, P’s inj under D’s exclusive control.

Exclusive is lax, and ignored in product liability. In medical, presume each D involved in surgery has breached care unless a D rebuts.

Question 29

Cause in Fact/Actual Cause

Answer 29

but for D’s act/omission, injury wouldn’t have occurred. most courts need causal link. substantial factor test for 2 or more Ds. If unclear, burden shifts to multiple ds to prove each did not cause P’s harm.

Joint and several liability. apply with cause of indivisible injury or common plan or design.

Loss of Change is like % change in recovery based on percent D added.

Question 30

Proximate cause/scope of liability

Answer 30

D liab for rsbl foreseeable consequences of a foreseeable type (maj) or D liab for all direct consequences (min).

Maj rule is P can recover if foreseeable victim of conduct, but min rule is harm needs to be within scope of liability

Eggshell skull rule.

Intervening and superseding causes. Ned direct cause, an intervening cause is a cause of harm that occurs after D’s act. Superseding cause breaks the chain of prix cause, D not liable. unforeseeable intervening cause is superseding cause. negligent intervening acts are foreseeable and may lead to joint and several liability.

Question 31

Damages

Answer 31

Actual damages required, personal injury or prop damage. If damaged, then may add NIED claims. make the victim whole. Duty to mitigate. Eggshell skull rule applies. For property look to market value difference.

Collateral Source Rule has widly been changed but traditionally, D’s insurance payment can be credited.

Punitives allowed by clear and convincing evidence but only single digit ratio and malicious or reckless or something like that.

Question 32

NEID

Answer 32

Zone of Danger –> P within zone of danger? threat of physical impact caused emotional distress. Maj need physical symptoms, min does not.

Bystander recovery –> outside zone can recover if closely related to P, present at scene, and observed the injury. Maj needs physical symptoms.

Special Relationship –> no threat of physical symptoms required (mishandling a corpse).

Question 33

Vicarious Liability Generally

Answer 33

liability for er for ee’s torts. Occurs when er has right to control means and methods of ee. Tort within scope of employment (employred to do or acts intended to profit or benefit er). Not liable for intentional torts uness authorized or force inherent to job.

May be liable for a detour, but not for a frolic.

Can be directly liable (not VC) for negligent training, hiring, supervision.

Question 34

ICs

Answer 34

Er not generally liable for IC torts except for negligent selection of IC, Vicarious liab for non-delegable duty, OR vicarious liab for IC acting under apparent agency.

Question 35

Dram-shop liability

Answer 35

many recognize cause of action against seller of intoxicating begs when a third p is subsequently injured due to intox. Some limitations.

Question 36

Limits on Liab due to relationships (immunities)

Answer 36

Gov’t, federal gov’t traditionally immune but now limited immunity. get immunity for most trad gov’t acts and discretionary functions and gov’t contractor product. intentional torts by LEO is no immunity.

State gov’t, most states have waived sovereign immunity at least partially.

Gov’t officials get immunity if discretionary functions but not ministerial acts.

Question 37

Sharing Liab Among Multiple Ds

Answer 37

Joint and several liab is each D found liab for single indivisible harm liab for the entire harm.

Pure several liab is maj rule and each D only liable for his proportionate share. Contribution is when you pay excess that, can recover that excess from joint tortfeasor. Not for intentional torts usually.

Can indemn this stuff.

Question 38

Contributory Fault

Answer 38

P’s fault is complete bar to recovery (common law)

not a defense to intentional tort, gross neg, or recklessness.

Some states have last clear chance rule, but its mostly gone.

Question 39

Comparative Fault

Answer 39

Pure –> not a complete bar to recovery, P’s damages reduced by proportion that P fault bears to total harm.

Partial –> if P less at fault, P’s recovery reduced like above, if at fault, then P is barred from recovery. If equally at fault, recovers 50% of total damages.

Does not reduce recovery for intentional torts.

Question 40

Assumption of risk (A/R)

Answer 40

traditionally is unreasonably proceeding in face of know, specific risk. affects recovery. in a contrib this means no recovery. In a comparative, merely reduces recover.

Question 41

Exculpatory clauses in ks

Answer 41

unenforceable sometimes for several reasons. Basically, common carriers, innkeepers, and ers can’t disclaim liab for negligence.

Question 42

SL Generally

Answer 42

DAD, Dangerous Activities, Animals, and Defective/Dangerous Products

Elements are Absolute Duty to make p’s person or prop safe, actual and prox cause, and Damages.

Question 43

Abnormally Dangerous Activities (SL)

Answer 43

not common engaged in, inherent, foreseeable, and highly significant risk of harm. SL limited to harm expected from act.

Look to gravity, inappropriateness of place, limited value of activity.

Question 44

Animals (SL)

Answer 44

wild animals –> not by custom devoted to the service of humankind where it is being kept.
SL for harm arising from dangerous propensity characteristic of animal or about which owner has reason to know. SL for rsbl foreseeable damage from trespasing animal. SL for injuries from freaful raction. NOT SL to undiscovered trespasser generally.

Domestic animals, owner SL if knows or has reason to know of dangerous propensities and harm results.general neg on pet strats onto public road and accident. But can be liab for trespassing pets if several things are met.

Question 45

Defenses to SL

Answer 45

contrib neg not a defense.

Comparative neg can reduce recovery. But not in all jx.

Assumption of risk bars recovery.

Question 46

Products Liab Negligence

Answer 46

Duty = rsbl care owed to any foreseeable P by commercial whatever
Breach is faulured to exercise rsbl care in inspection/sale of product
Causation facual and prox
Damages actualy injury/property damage.
Defenses are contrib/comparative neg and A/R.

Question 47

SL Products Liab generally

Answer 47

Elements are product was defective, defect existed when it left D’s control, and Defect caused P’s injury when the product was used in a rsbl foreseeable way.

Question 48

Defective Product SL

Answer 48

Manu defect –> product does not conform to D’s own specs

Design Defect –> either consumer expectation test (dangerous beyond expectation of ord consumer) OR risk utility test.

Can also have a failure to ware defeect. basically risks could have been reduced or avoided with rsbl instrucitons or warnings.

Leanred intermediary rule –> if doctor aware of risks, then you are good unless doctor won’t be involved in dispersion or in birth control pills.

Question 49

SL Products Ps and Ds

Answer 49

P not req to be in privity of k, anyone foreseeable injured.

Ds must be in busiess of selling, includes manu, distributor, and retail seller.

Damages can be personal injury or proeprty damages and only pure economic loss under some warranty actions.

Question 50

SL products defenses

Answer 50

comparative fault reduces recovery in maj.

Contrib neg not a defnese if misuse was in rsbl foreseeable way or negligently faield to discover defect.

AR depens on if contrib neg or comparative fault jx.

Unforeseeable misuse, alteration, or modification by the user precludes in contrib jx or reduces in comparative jx.

Question 51

SL Product Warranties

Answer 51

Implied merchantability. Implied fitness sometimes. . Privity is weird here and maj needs purchaser or member of his family for recovery. Alternatives allow for more broad privity. Only the broadest allows for economic loss.

Express warranties leaves seller liab for any breach of express warranty, regardless of fault.

Defenses can be disclaimers (limiting consequential damages tho is unconscionable). comparative fault and AR. Contrib neg (generally not a bar). Misuse.

Question 52

Defamation

Answer 52

Website shit out on that.
But

Defamatory Lang
Of or Concerning P
Publication
Falsity
Fault

Slander needs special damages, Libel does not. Limits on punitive damages and for public concern and public officials.

Question 53

Invasion of Privcy

Answer 53

I FLAP
Seems hard to prove

Intrusion
False Light
Appropriation
Private Facts

Question 54

Intentional Misrep and Neg Misrep

Answer 54

These seem really hard to show. NEg misrep seems more likely

Neg misrep is
D provides false info to P as a result of D’s neg in the course of D’s bis or profession AND P justifiably relies on this info and incurs pecuniary damages as a result.

Question 55

Intentional Interference with biz relations

Answer 55

Three things here,

Intentional interference with k –>
D knew of valid k relat between P and thrid P
D intentionally interfered with k exceeding fair comp and free expression resulting in a breach, AND
breach cause damages to P

Interference with prospective economic advantage (no k). This seems unlikely and needs egregious conduct.

Theft of Trade Secrets --> 
P owners valid trade secret
not generally known
rsbl precautions to protect
D took secret by improper means.

Question 56

Res Ipsa Proof

Answer 56

Under the traditional standard for res ipsa loquitur, the plaintiff must prove that (i) the accident was of a kind that ordinarily does not occur in the absence of negligence; (ii) it was caused by an agent or instrumentality within the exclusive control of the defendant; and (iii) it was not due to any action on the part of the plaintiff.

Question 57

Service Provider of a Product

Answer 57

Doctors and hospitals are treated as the provider of a service, rather than goods, even where the defective product is implanted in a patient. Consequently, it is likely that similar treatment would be accorded to a dentist. Since the dentist is most likely not treated as a seller of the defective tooth, he is not subject to strict liability with regard to the harm caused by its defect

Question 58

SL Products

Answer 58

As long as the seller is in the business of selling the product, she is subject to strict liability for a defective product, even if she was not responsible for the defect in any way and even when the product is not purchased directly from her. The commercial supplier of a component is subject to liability if the component itself is defective.

Question 59

Joint and Several vs Pure Several Liab

Answer 59

In jurisdictions that have adopted the doctrine of pure comparative negligence (the default on the MBE, unless you are told otherwise), a plaintiff’s contributory negligence is not a complete bar to recovery. Instead, the plaintiff’s full damages are calculated by the trier of fact and then reduced by the proportion that the plaintiff’s fault bears to the total harm. Because the jury has determined the water skier to be 10% at fault for his neck injuries, his total possible recovery is reduced by that percentage. Under pure several liability, each tortfeasor is liable only for his proportionate share of the plaintiff’s damages. Here, the water skier has chosen to collect from the spotter. The spotter was found to be 60% at fault. Accordingly, the water skier can collect $60,000 from the spotter. The spotter cannot seek any contribution from the driver because the spotter has not paid more than his proportionate share of the water skier’s damages. Answer choice A is incorrect. The water skier would be able to recover $90,000 from the spotter, and the spotter could then seek $30,000 from the driver in contribution, if the jurisdiction recognized joint and several liability. However, the jurisdiction recognizes pure several liability.

A majority of states now restrict or reject joint and several liability and instead recognize pure several liability, under which each tortfeasor is liable only for his proportionate share of the plaintiff’s damages.

Question 60

Private Nuisance

Answer 60

A private nuisance is a thing or activity that substantially and unreasonably interferes with another individual’s use or enjoyment of his land. The interference must be intentional, negligent, reckless, or the result of abnormally dangerous conduct to constitute nuisance. Finally, a substantial interference is one that would be offensive, inconvenient, or annoying to a normal, reasonable person in the community

Question 61

Domestic Animal

Answer 61

A domestic animal’s owner is strictly liable for injuries caused by that animal if he knows or has reason to know of the animal’s dangerous propensities, and the harm results from those dangerous propensities.

Question 62

IIED In Exam

Answer 62

A defendant is liable for intentionally or recklessly acting with extreme and outrageous conduct, which conduct causes the plaintiff severe emotional distress. A defendant may be liable to a third-party victim if he intentionally or recklessly causes severe emotional distress to a member of the victim’s immediate family who contemporaneously perceives the defendant’s conduct, whether or not such distress results in bodily injury.

Question 63

Shopkeeper’s Priv

Answer 63

detention was not a reasonable and valid use of their authority under the protection of the shopkeeper’s privilege. Threatening to call the police and claiming to have videotape surveillance of the children stealing was not reasonable

Question 64

Guest in a Car

Answer 64

In most jurisdictions, an automobile driver owes a duty of ordinary reasonable care to all passengers, including guests (i.e., individuals who do not confer an economic benefit for the ride on the driver). However, a minority of states distinguish between the two with “guest statutes,” which impose only a duty to refrain from gross or wanton and willful misconduct with respect to a guest.

Question 65

Neg Per Se Maj and Min

Answer 65

the standard of care owed by a defendant can be determined by statute. In most jurisdictions, this violation can establish negligence as a matter of law. In a minority of jurisdictions, however, violation of that statute can give rise to a rebuttable presumption that the defendant owed a duty and breached it

Question 66

Defects Rules ….

Answer 66

to recover under a strict products liability theory, the plaintiff must plead and prove that the product was defective, the defect existed when it left the defendant’s control, and the defect caused the plaintiff’s injuries when the product was used in an intended or reasonably foreseeable way.

Question 67

Priv Nuiance Thick skin

Answer 67

A private nuisance is a thing or activity that substantially and unreasonably interferes with another individual’s use or enjoyment of his land. A substantial interference is one that would be offensive, inconvenient, or annoying to a normal, reasonable person in the community. Even a “thick-skinned” plaintiff who is not offended, inconvenienced, or annoyed is nevertheless entitled to recover if an average reasonable person would be, although the amount of damages may be affected.`

Question 68

That weird accounting tort

Answer 68

Here, although the elements of negligent misrepresentation are otherwise met, the accountant is not liable if the third party’s use of the information is of a different character than the use for which the accountant provided the information.

Question 69

Proximate Cause and Rescuers

Answer 69

Liability typically extends only to foreseeable plaintiffs and hazards. A person who comes to the aid of another is a foreseeable plaintiff. If the defendant negligently puts either the rescued party or the rescuer in danger, then he is liable for the rescuer’s injuries.

Question 70

Psychotherapist Special Rela

Answer 70

Although there is generally no affirmative duty to act, the special relationship between a psychotherapist and a patient can impose upon the therapist an affirmative duty to act to protect a third party. When a patient has made credible threats of physical violence against a third party, the psychotherapist has a duty to warn the intended victim if the threat is a serious threat of physical violence against an ascertainable intended victim, determined by the object standard of a reasonable psychotherapist in the same circumstance.

Question 71

Eggshell Thing Again

Answer 71

Under the “eggshell skull” rule, the defendant is liable for the full extent of the plaintiff’s injuries due to the plaintiff’s pre-existing physical or mental condition or vulnerability, even if the extent is unusual or unforeseeable. Most jurisdictions do not allow recovery in negligence for pure emotional distress. However, a plaintiff who is the victim of a tort that causes physical injury may add emotional distress as an element of damages.