MBE - Torts Flashcards
What are the 7 intentional torts?
B.A.F.I.T.T.C
(1) Battery, (2) Assault, (3) False Imprisonment, (4) IIED, (5) Trespass to Land, (6) Trespass to Chattels, and (7) Conversion
What are the elements of battery?
(1) D commits harmful or offensive contact, and
(2) Contact must be with Ps person.
What qualifies as “contact” for battery?
“Contact” includes anything P is holding, touching or connected to.
Ex - purses, glasses, even horse if rider is on it.
What is the well-settled quartet for indirect causes of harm?
In following situations, D is held liable and P wins:
(1) Intervening Medical Negligence
(2) Intervening Negligent Rescue
(3) Intervening Protection and Reaction Forces
(4) Subsequent Disease or Accident.
What is the key principle regarding damages under a negligence claim?
Egg-Shell Skull Principle.
What is the egg-shell skull principle?
Principle that provides that once a P proves other elements, that P recovers all damages suffered, even if they are surprisingly great in scope.
D takes P as you find them.
What are the most common equitable remedies sought by Ps in tort claims?
(1) Preliminary injunction, and
(2) Permanent injunction.
When is the most appropriate time to discuss equitable remedies/injunctions?
After you have discussed liability for cause of action.
What is the function of a preliminary injunction?
Awarded early in the case, to freeze facts, maintain status quo - pending the result of trial on merits.
What is the 4-part test for injunctions?
(1) P has no adequate remedy at law
(2) P has protectable right involved in particular lawsuit
(3) Injunction must be enforceable, and
(4) Balance of hardships must tip in Ps favor.
What are the three special defenses injunctions?
(1) Unclean Hands
(2) Laches
(3) First Amendment
What is the defense of laches and what does it apply to?
Laches = prejudicial delay.
An analogous argument to statute of limitations, argument against an injunction.
What is the bottom line regarding preliminary injunctions?
Preliminary injunctions have to show (1) a likelihood of success on the merits AND (2) irreparable harm.
What is required to prove proximate cause?
Foreseeability.
Victim is foreseeable if liability would be “fair.”
Look for direct cause OR indirect cause
What are the alternatives scenarios to the BUT FOR test for factual causation?
(1) “Merged Cause” = Substantial Factor Test
(2) Unascertainable Cause = Shift Burden of Proof
What is required for factual causation?
P obligated to established linkage or connection between breach and th injury.
BUT FOR TEST.
Res Ipsa Loquitor
used by Ps who lack specific evidence about Ds wrongful conduct
What are the scenarios where P is allowed to recover for negligent infliction of emotional distress?
(1) Near Miss
(2) By-Stander
(3) Relationship cases
Is there a special standard regarding duty to act affirmatively?
Yes, namely there are NO DUTIES to act affirmatively.
You do not have to rescue a stranger in peril.
TWO EXCEPTIONS: (1) preexisting relationship, and (2) D caused peril or put P in peril.
What must P show to get a special standard established by statute?
Court will borrow statute if P is in class of persons and class of risks intended to be protected by statute.
What duty of care does a possessor of land owe invitees?
Possessor of property must proetct from all reasonably knowable traps on the land.
Invitees = enter with permission and confer economic benefit on possessor of property (commonly customers).
What duty of care is owed to a licensee by a possessor of land?
Possessor of property owes licensee a duty to protect from conditions that:
(1) concealed condition with non-obvious danger, and
(2) danger is one possessor knew about in advance.
Key – possessor of property who licensees a duty to protect from all known traps on property.
Licensees = enter with permission, no economic benefit (commonly social guests).
What standard of care is owed by a possessor of land to a DISCOVERED trespasser?
Duty only to protect from a condition that meets 4-part test:
(1) condition must be artificial or man-made
(2) Condition has to be highly dangerous
(3) Condition has to be concealed
(4) Danger must be known by possessor of property in advance
Key – possessor of piece of property owes a duty to a discovered trespasser to protect only from man-made death traps.
What standard of care is owed by a possessor of land to an UNDISCOVERED trespasser?
No duty owed, zero.
What are the 4 types of entrants involved in potential premise liability cases?
(1) Undiscovered Trespasser
(2) Discovered Trespasser
(3) Licensees
(4) Invitees(1) Undiscovered Trespasser
(2) Discovered Trespasser
(3) Licensees
(4) Invitees
What is the special standard of care for professionals (Negligence - duty)?
Professional is required to exercise skill and knowledge normally possessed by other members in good standing in similar circumstances.
What are the alternative standards of care to RPP?
(1) Special Standard for Children – child of similar age, experience and intelligence
(2) Special Standard for Professionals
(3) Special Standard for Premises Liability Cases
(4) Special Statutory Standards
(5) Special Standard for Cases Involving Duty to Act Affirmatively
(6) Special Standard for Negligent Infliction of Emotional Distress
What are the exceptions for RPP under the circumstances standard?
(1) Superior skill or knowledge
(2) Physical characteristics
What is the standard for reasonably prudent person under the circumstances?
General assumption that there is a duty of care.
Objective test
What are the exceptions for foreseeable victims doctrine?
(1) rescuers
(2) claims associated with fetus
What is the standard regarding duty and foreseeability of victims under negligence claim?
A victim is foreseeable if they are in the “zone of danger:”
Whether P is in zone of danger or immediate vicinity varies by activity type.
What two key questions should be asked with regard to duty under negligence claim?
(1) To whom do I owe a duty? A: Foreseeable Victim
(2) How much care do I owe? A: Care exercised by reasonably prudent person under similar circumstances.
What are the elements of negligence?
Duty, breach, causation (factual and proximate) and damages.
Other important economic torts
(1) Malicious Prosecution
(2) Prima Facie Tort
(3) Inducing Breach of Contract
(4) Theft of Trade Secret
What are the elements of fraud?
(1) Must be misrepresentation by D,
(2) D made false statement intentionally or recklessly
(3) D must induce reliance and P relied on statement
(4) Damages
KEY: somebody lied to you on purpose, with goal of screwing you over, you fell for it and got screwed.
What are the 4 sub-claims of the law of privacy?
(1) Appropriations
(2) Intrusion
(3) False Light
(4) Disclosure of Confidential Information
Defamation and affirmative defenses.
(1) consent, (2) truth, (3) privilege
What are the elements of defamation?
(1) D must make defamatory statement that specifically identifies the P
(2) Publication of that statement, and
(3) Damages.
Defense of necessity.
Only defense to three property torts. (Trespass to chattels, land or conversion).
Private v. Public
What are the protected privileges regarding torts?
(1) Self Defense
(2) Defense of Others
(3) Defense of Property (deadly force never allowed)
What are the two flavors of implied consent?
(1) implied consent based on customary practice
(2) implied consent based on Ds reasonable interpretation of Ps objective conduct/circumstances.
What is a key issue regarding the affirmative defense of consent?
Whether P had legal capacity to give consent?
Children can consent to age-appropriate actions.
Kinds of consent: express and implied.
Affirmative defenses and intentional torts
(1) Consent, (2) protected privileges, or (3) defense of necessity
What are bailments?
Bailments are created when you surrender possession of item for a limited time and for a limited purpose.
Watch for these issues (regarding when a bailment is created): (i) item inside another item, (ii) safe deposit box, or (iii) garages/coat checks.
What are liens?
Security device, way of holding personal property until you are paid a debt?
General vs. Special Lien
Gifts
Inter vivos gifts - given during lifetime of owner
Gifts cause mortis - gifts given in contemplation of death
Abandoned vs. Lost property?
Abandoned = original owner gives up possession and has intent to relinquish title.
Lost = original owner parted with possession but had no intent to relinquish control.
What is the primary issue regarding rights of finders of property?
Do they get to keep the item they found?
Depends on whether the item was abandoned by original owner or lost.
What are the elements to trespass to chattels & conversion?
Both of these torts involve intentional interference with item of personal property. Deliberate, intetnional harm to item.
DISTINCTION – trespass to chattels = small or modest harm. Conversion = significant harm.
Regarding trespass to land, what are the ways to accomplish physical invasion?
(1) D can enter property by foot or in vehicle. Regarding intent, D just needs to intend to be where he is - not to trespass (doesn’t need to know if he crossed boundary).
(2) Throwing, propelling or projecting tangible object on the land.
What are the elements of the tort for trespass to land?
(1) D must commit an act of physical invasion, and
(2) that act must interfere with Ps exclusive possession of land.
Regarding IIED and outrageous conduct, what are the common fragile class of persons?
(1) Children, (2) elderly, and (3) pregnant women.
Regarding IIED, what qualifies as outrageous conduct?
Outrageous conduct = conduct that exceeds all bounds of decency tolerated in a civil society.
Two things that are not outrageous: (a) mere insults, and (b) if exercising first amendment.
Three hallmarks of outrageous conduct:
Conduct that is repetitive or continuous
Common carriers/innkeepers who treat guests inappropriately
P is member of fragile class of persons.
What are the elements of IIED?
(1) D must engage in outrageous conduct, and (D need not act intentionally, reckless conduct is sufficient)
(2) P must suffer severe emotional distress.
Regarding false imprisonment, what qualifies as a “reasonable means of escape” which would negate P being bounded in confined area?
Exit that is REASONABLE.
This does not include exit that is dangerous, disgusting, humiliating or hidden.
Are threats sufficient to qualify as an “act of restraint” for false imprisonment?
Yes.
Provided threat is one that would act as restraint in mind of reasonable person.
An omission can qualify as an act of restraint as well.
An act of restraint only counts if P knows of it/is harmed by it.
What are the elements of false imprisonment?
(1) D must commit an act of restraint, and
(2) P must be confined in a bounded area without a reasonable means of escape.
Regarding assault, what can negate immediacy even when paired with a menacing gesture?
(1) Conditional words
(2) Words in the future tense
Regarding assault, what qualifies as apprehension of an “immediate battery?”
Focus - timing.
General rule – words alone lack immediacy, immediacy requires D to make a move or menacing gesture.
Unloaded gun problem.
Regarding assault, when D engages in a menacing gesture, but lacks the ability actually commit the battery - an assault can still result if P reasonably thinks the battery may occur. (If P has reasonable apprehension)
Battery: what constitutes a harmful or offensive contact?
Harmful - physical injury, broken bone
Offensive - contact that violates a reasonable sense of personal dignity or offensive. (Based on normal/ordinary person standard).
What are the elements of assault?
(1) D must place P in reasonable apprehension, and
(2) P has apprenhension of immediate battery.
Regarding assault, what does “reasonable apprehension” mean?
Apprehension = KNOWLEDGE.
If P has knowledge of immediate battery (regardless of fear) it qualifies as grounds for assault.
What is the majority rule defense to negligence?
Comparative Negligence.
What must D show to utilize comparative negligence as a defense?
D must show P failed to exercise proper care for his own safety.
If D successfully proves failure to exercise proper care – what result?
Jury will be instructed to BALANCE Ds fault and Ps fault and assign each litigant a number representing degree of fault.
What is the key focus of bar questioning on comparative negligence?
If the consequence results in a reduction of recovery.
Modified or partial comparative fault.
If P has fault greater than 50%, then absolute bar to recovery.
What are the three key strict liability cases?
(1) Injury caused by animals
(2) Abnormally dangerous activity
(3) Injuries caused by products
What is the general rule regarding strict liability and injuries caused by domesticated animals?
D not strictly liable for domesticated animals (Pets and livestock).
Generally, not strict liability for domesticated animals, but what exception?
Strict liability if you keep domesticated animal and you have KNOWLEDGE of its VICIOUS PROPENSITIES.
Rule regarding strict liability and wild animals.
If you keep wild animals, you are strictly liable.
Rule regarding strict liability and abnormally dangerous activity.
If you engage in abnormal dangerous activity, you are strictly liable.
Safety precautions irrelevant.
What is an abnormally dangerous activity?
(2-part test)
(1) Activity creates foreseeable risk of serious harm even when reasonable care is exercised, and
(2) Activity is not matter of common usage within the community.
What are the elements of strict liability claim regarding injury caused by products?
(1) D must be merchant,
(2) P must show product is defective
(3) P must show product that hurt him has not been altered since leaving Ds control, and
(4) P must be making a foreseeable use of product.
What are the types of defects (P needs to prove one) under a products liability case?
(1) Manufacturing defect
(2) Design defect
(3) Information defect
Nuisance
P suffered nuisance when your ability to use and enjoy property is disturbed to an unreasonable degree.
On exam look for balancing interests OR P will recover if his ability to use/enjoy land has been interfered with to an unreasonable degree.
What is the key issue in worker’s compensation cases?
Distinction between employee and independent contractor.
What is the definition of no fault insurance?
No fault is designed to divert minor auto cases from courts.
Vicarious liability, when is 3P liable?
Relationships, liability turns on relationship between original tortfeasor and 3P.
What are the 4 key important relationships under vicarious liability?
(1) Employer/employee
(2) Independent Contractor & Hiring Party
(3) Owner of Car/Driver of car
(4) Parent & Child
What is a licensee?
One who enters owners land with permission for her OWN PURPOSE OR BENEFIT, not the benefit of the property owner.
What duty is owed to licensee by property owner?
(1) Duty to warn/make safe regarding known conditions that present unforeseeable risk, and
(2) Exercise reasonable care in conduct of “active operations” on property.
Note - owner has no duty to INSPECT OR REPAIR.
