MBE--Torts(Outline)

Question 1

Battery

Answer 1

i) Harmful/offensive contact; ii) to plaintiff’s person; iii) Intent; and iv) Causation

Question 2

Assault

Answer 2

i) Act (of which P must be aware–P need not be aware of D’s identity) by D creating reasonable apprehension (need not be fear/intimidation) in Plaintiff; ii) Of immediate harmful/offensive contact to P’s person; iii) Intent; and iv) Causation

Question 3

False Imprisonment

Answer 3

i) act/omission on part of D that confines/restrains P; ii) to a bounded area; iii) Intent; and iv) Causation Sufficient methods of restraint: physical barriers; physical force; threats of force; failure to release; invalid use of legal authority Insufficient methods of restraint: moral pressure; future threats time of restraint irrelevant P must know of confinement/be harmed by it (awareness) bounded area: freedom of movement limited. Must be no reasonable means of escape known to P. Damages not required (may be nominal; punitive allowed if D acted maliciously).

Question 4

IIED

Answer 4

i) Act by D amounting to extreme and outrageous (transcends all bounds of decency) conduct; ii) Intent or recklessness; iii) Causation; and iv) Damages–severe emotional distress. Actual damages (severe emotional distress) are required. Proof of physical injury not required. *the ONLY intentional tort to the person that requires damages. Causation in bystander cases: D intentionally cuases physical harm to third person and P suffers bc of it, P may recover by showing prima facie elements OR that i) she was present when injury occurred; ii) she is close relative of the injured; and iii) the D knew facts (i) and (ii) EXAM TIP: IIED is fallback tort position. If another alternative allows P to recover, choose it over this alternative.

Question 5

Intentional Torts

Answer 5

To person: -Battery -Assault -False Imprisonment -IIED To property: -Trespass to Land -Trespass to Chattels -Conversion Defenses: -Consent -Self defense, defense of others and defense of property -Necessity -Discipline

Question 6

Trespass to Land

Answer 6

i) physical invasion (by person or object–not vibrations or odormaybe nuisance) of P’s real property (airspace and underground included); ii) Intent (D need intend only to enter–not know that land belonged to another); and iii) Causation No requirement of damages; P can recover without showing actual injury to land

Question 7

Trespass to Chattels

Answer 7

i) Act by D that interferes (by direct damage or depriving right of possession in chattel) with P’s right of possession in a chattel; ii) Intent (to do the act is all that is required–not to specifically trespass–mistaken belief is no defense); iii) Causation; and iv) Damages (actual damages–not necessarily to chattel, but at least to possessory right are required)

Question 8

Conversion

Answer 8

i) Act by D that interferes with P’s right of possession in a chattel; ii) the interference is SO SERIOUS that it warrants requiring D to pay chattel’s full value; iii) Intent (mistake is no defense–only intent required is to do the act); and iv) Causation Acts of conversion include: wrongful acquisition (theft); wrongful transfer; wrongful detention, and substantially changing, severely damaging, or misusing a chattel. longer the withholding period and more extensive the use, the more likely its conversion; A less serious interference is trespass to chattels. Anyone with possession/immediate right to possession of the chattel may maintain action for conversion. Remedies: P may recover damages (fair market value at the time of conversion) OR possession (replevin)

Question 9

Defenses to Intentional Torts:

Answer 9

i) Consent (cant consent to criminal act); this defense raises two inquires: 1) was consent valid (e.g. no fraud)? 2) Did D stay w/in bounds of consent? a) Express (actual) consent b) Implied (apparent or implied by law [to save life] c) Capacity required (no incompetents; drunk; kid) d) Exceeding Consent given ii) Self defense, defense of others and defense of property (<–not available against one with a privilege) 1) is privilege available? only applies to preventing commission of tort. 2) is a mistake permissible as to whether tort being defended against (battery, trespass) is actually committed? reasonable mistake allowed. 3) was proper amt of force used? if more than reasonably necessary force used to prevent harm, the defense is lost. iii) Necessity (public [act is for public good] and private [act solely to benefit limited number of ppl]. Under private necessity, actor must pay for any injury he causes. *necessity is a defense only to property torts. iv) Discipline: parent or teacher may use reasonable force in disciplining children.

Question 10

Harm to Economic/dignitary interests

Answer 10

Defamation Invasion of right to privacy Misrepresentation

Question 11

Defamation

Answer 11

i) defamatory language (adverse affect on reputation OR inducement by innuendo; must be living person); ii) “of or concerning” the P (or by colloquium, using extrinsic evidence; if group, must be ALL members of SMALL group or SOME members of SMALL group, not ALL members of LARGE group); iii) Publication (intentionally or negligently) thereof by D to a third person [intent to publish–not intent to defame]; and iv) damage to P’s reputation: {(libel[written &tv/radio]]=general damages presumed; no need special damages} OR {slander[spoken]must prove special damages UNLESS defamatory per se: which is adverse reflect on conduct in biz/profession; disease; guilty of CIMT; or unchaste woman}). If defamation involves matter of public concern, the Constitution requires P to prove 2 add’l: v) falsity of the defamatory language (if true, consider IIED or invasion of right to privacy UNLESS P is public figure or matter is of public concern); AND vi) fault on part of D (Public P [must show D malice] or Private P [must prove negligence regarding falsity]). Only for PRIVATE P: =if D negligent–>only actual injury damages are recoverable =if D actual malice–>damages may be presumed and punitive damages allowed.

Question 12

Defenses to Defamation

Answer 12

i) Consent 1) was consent valid (e.g. no fraud)? 2) Did D stay w/in bounds of consent? a) Express (actual) consent b) Implied (apparent or implied by law [to save life] c) Capacity required (no incompetents; drunk; kid) d) Exceeding Consent given ii) Truth (only applies if statement is NOT about purely private matter; if purely private matter, then no need to prove falsity) iii) Absolute privilege (D protected for the following: judicial proceedings; legislators during proceedings; federal executive officials; between spouses; ‘compelled’ broadcasts) iv) Qualified privilege(reports of official proceedings; statements in interest of publisher; statements in interest of recipient; and statements in common interest of the publisher and recipient: may be lost if: not w/in scope of the privilege or speaker acted with actual malice)

Question 13

Invasion of right to privacy

Answer 13

1) four branches/4 types of wrongs: a) Appropriation of P’s Picture/name (must show unauthorized use for D’s commercial advantage) b) Intrusion on seclusion (act of prying or intruding must be highly offensive to reasonable person intrusion must be ‘private’–not a pic in public place) c) False light publication (where one attributes to P views he doesnt hold or actions he did not take; must be highly offensive to reasonable person; [1st Amend limitation: IF matter of public interest–> actual malice must be proved]) d) public disclosure of private facts about P (IF public disclosure of private info–> public disclosure must be highly offensive to a reasonable person) 2) Causation (must have been proximately caused by D’s conduct) 3) Proof of Special damages unnecessary (emotional distress and mental anguish are sufficient) 4) Defenses (consent and defamation privilege ARE defenses; truth, inadvertance, good faith NOT good defenses) 5) Right of privacy (personal right–doesnt extend to family, doesnt survive death of P, and is not assignable, and not applicable to corporations).

Question 14

Misrepresentation

Answer 14

1) Intentional (fraud, deceit): i) Misrepresentation of material fact past or present ii) Scienter (D knew/believed it was false or that there was no basis for statement) iii) Intent (to induce P to act/refrain from acting in reliance upon misrep.) iv) Causation (actual reliance) v) Justifiable reliance vi) Damages (P must suffer actual pecuniary loss) NO DEFENSES to Intentional Misrep 2) Negligent i) Misrepresentation by D in biz/prof capacity ii) Breach of duty toward a particular P iii) Causation iv) Justifiable reliance v) Damages Generally confined to COMMERCIAL setting

Question 15

Negligence (prima facie)

Answer 15

i) Duty of care ii) Breach of Duty iii) Actual and Proximate Cause (Causation) iv) Damage

Question 16

i) Duty of Care (Negligence)

Answer 16

1) Foreseeable/Unforeseeable P’s 2) Specific Situations 3) Standards of Care 4) Duty Regarding Negligent Infliction of Emotional Distress 5) Affirmative Duties to Act

Question 17

(Neg) i) Duty of Care 1) Foreseeable/Unforeseeable P’s

Answer 17

Duty of care owed only to foreseeable P’s. However, problem arises when D breaches duty to one P [P1] and also causes injury to another (possibly unforeseeable P [P2]). PALSGRAF offers 2 outcomes: a) Majority view: Foreseeable zone of danger -P2 can recover only if she can establish that reasonable person would have foreseen a risk of injury to her under the circumstances (i.e. she was located in the foreseeable zone of danger). b) Minorrity view: Everyone is foreseeable -P2 may establish the existence of a duty extending from D to her by a showing that D has breached duty owed to P1.

Question 18

(Neg) i) Duty of Care 2) Specific Situations

Answer 18

a) Rescuers: is a foreseeable P when D negligently put self or third person in peril (danger invites rescue). However, firefighters/police may be barred by ‘firefighters rule’ from recovering for injuries caused by risks of rescue. b) Prenatal injuries: owed to viable fetus. IF failure to diagnose congenital defect/perform contraceptive procedure–> child may not recover for ‘wrongful life’, but parents may recover damages for ‘wrongful birth’ or ‘wrongful pregnancy’ for add’l medical expenses and pain and suffering from labor; ordinary child rearing expenses, however, CANNOT be recovered. c) Intended Beneficiaries of Economic Txns: third party for whose economic benefit a legal/biz txn was made (will beneficiary) may be a foreseeable P.

Question 19

(Neg) i) Duty of Care 3) Standards of Care

Answer 19

1) Basic–Reasonable person: 2) Particular Standards of care 3) Owners/Occupiers of Land 4) Statutory Standards of Care

Question 20

(Neg) i) Duty of Care 3) Standards of Care 1) Basic Reasonable person

Answer 20

objective/average person; mental deficiencies [stupidity no excuse] not taken into account; reasonable person considered to have same physical characteristics as D (but also, D is expected to know one’s physical handicaps and exercise the care of person with such knowledge [e.g. blind person shouldn’t drive car])

Question 21

(Neg) i) Duty of Care 3) Standards of Care 2) Particular Standards of care

Answer 21

a) Professionals: required to possess the knowledge and skill of a member of the profession or occupation in good standing in similar communities. Medical specialists held to NATIONAL standard of care. Modern trend applies national standard to ALL physicians. =Duty to disclose risk of treatment: Dr. has duty to disclose risks of treatment to enable patient to give informed consent. Dr. breaches is undisclosed risk was serious enough that a reasonable person in patient’s position would have withheld consent on learning of the risk. b) Children: held to standard of a child of like age, education, intelligence, and experience. This is a SUBJECTIVE test. Child under 4 without capacity to be negligent. Children engaged in ADULT ACTIVITIES may be required to conform to ‘adult’ standard. c) Common carriers/innkeepers:: very high standard/degree of care (i.e. liable for slight negligence). For higher standard to apply, P MUST be passenger or guest. d) Automobile driver to guest: guest in car owed duty of ordinary care. e) Bailment duties: bailor transfers to bailee possession, but not title, to chattel. =duties owed by bialee: -IF for sole benefit of bailor–>low standard -IF sole benefit of bailee–> high standard -IF mutual benefit (typically bailment for hire)–>ordinary standard =Duties owed by bailor: -IF sole benefit of bailee–>bailor must inform bailee of known, dangerous defects in the chattel -IF bailment for hire–>bailor nust inform bailee of chattel defects of which he is/should be aware. f) Emergency situations: D must act as reasonable person would under same emergency conditions. However, emergency not to be considered if it is of D’s own making.

Question 22

(Neg) i) Duty of Care 3) Standards of Care 3) Owners/Occupiers of Land: depends on where injury occurred and status of P.

Answer 22

a) Duty of Possessor to Those Off Premises: No duty to protect P from NATURAL CONDITIONS. there is a duty for unreasonably dangerous ARTIFICIAL CONDITIONS. Also, one must carry on activities on the premises so as to avoid unreasonable risk of harm to others off premises. TIP: in urban area: owner/occupier is liable for damage caused off premises by trees on the premises (falling branch). b) Duty of Possessor to Those On Premises: majority: duty owed to P on premises for dangerous conditions on the land depend on P’s status as trespasser, licensee, or invitee: i) Duty owed to Trespassers: No duty to UNDISCOVERED trespassers. BUT IF DISCOVERED/ANTICIPATED Trespassers, landowner must: 1) warn/make safe concealed, unsafe, ARTIFICIAL conditions KNOWN to landowner involving risk of DEATH/SERIOUS BODILY HARM, and 2) use reasonable care in active operations on property (no duty is owed for natural conditions or less dangerous artificial conditions).. ii) Attractive nuisance: majority: landowner has duty to avoid reasonably foreseeable risk of harm to children caused by artificial conditions. To establish doctrines applicability, P must show: 1) dangerous conditions on land that owner is/should be aware of, 2) owner knows/should know children frequent the vicinity, 3) condition likely to cause injury (bc child inability to appreciate risk), AND 4) expense of remedying is slight compared to magnitude of risk. TIP: child doesnt have to be attracted onto land by the dangerous condition. iii) Duty owed to licensees: enters land w/possessor’s permission for own purpose/biz, rather than for possessor’s benefit. Possessor has duty to 1) warn/make safe natural or artificial conditions KNOWN to owner that create unreasonable risk of harm to licensee and licensee unlikely to discover. Possessor has no duty to inspect/repair. (Social guests are licensees). iv) Duty owed to invitees: enter onto land in response to invitation (land help open to public/biz). Landowner owes same duties owed to licensee PLUS duty to MAKE REASONABLE INSPECTIONS to discover NONOBVIOUS dangerous conditions and make them safe (warning may suffice). Invitee can lose status if exceed scope of the invitation. v) Duty owed to users of Recreational Land: landowner who permits general public use land for recreational purposes w/out charging fee NOT liable for injuries UNLESS landowner WILLFULLY and MALICIOUSLY failed to guard against/warn of dangerous condition/activity. vi) Modern trend: minority: simply apply reasonable person standard to dangerous conditions on land. c) Duties of Lessor and Lessee of Realty: lessee has duty to maintain premises. lessor must warn of existing defects of which he is aware/has reason to know of, and which he knows lessee not likely to discover on inspection. If lessor covenants to repair, he is liable to dangerous conditions. If lessor volunteers to repair and does so negligently, he is liable. TIP: if guest of tenant is injured, landlord may be liable as lessor of premises. But also tenant may be liable to guest because of tenant’s status as owner/occupier of premises. d) Duties of Vendor of Realty: vendor must disclose to vendee concealed, unreasonably dangerous conditions of which vendor knows/has reason to know, and which he knows the vendee is not likely to discover on reasonable inspection.

Question 23

(Neg) i) Duty of Care 3) Standards of Care 4) Statutory Standards of Care: clearly stated specific duty imposed by statute providing for criminal penalties may replace common law duty of care IF: i) P is within the protected class, and ii) statute was designed to prevent type of harm suffered by P.

Answer 23

1) Excuse for violation: violation may be excused where compliance would do more danger/harm than violation or where compliance would be beyond D’s control. 2) Effect of Violation or Compliance: Majority: unexcused statutory violation is negligence per se i.e. establishes first 2 parts of negligence. Alternatively, compliance with statute will not necessarily establish due care.

Question 24

(Neg) i) Duty of Care 4) Duty Regarding Negligent Infliction of Emotional Distress: duty may be breached when D creates foreseeable risk of physical injury to P. P must satisfy 2 requirements to prevail:

Answer 24

a) P must be w/in zone of danger; and b) P must suffer physical symptoms from distress c) Special situations: 1) bystander not in zone of danger seeing injury of another: may recover for distress IF i) P and injured person closely related; ii) P was present at scene; and iii) P personally observed. Minority drops physical symptom requirement. 2) Special relationship btw P and D (when duty arises from the relationship [e.g. dr.’s misdiagnosis that patient has terminal illness] 3) Other situations: where D’s negligence creates great likelihood of emotional distress (e.g. erroneous report of relatives death/mishandling of relative’s corpse)

Question 25

(Neg) i) Duty of Care 5) Affirmative Duties to Act generally, one doesnt have legal duty to act. However, some EXCEPTIONS are:

Answer 25

a) assumption of duty by acting: once D undertakes aid–> must do so w/reasonable care) b) Peril due to D’s Conduct: D has duty to assist someone he has negligently or innocently placed in peril. c) Special relationship btw parties: (parent-child; common carriers; innkeepers; shopkeepers; and others that gather the public for profit owe duty of reasonable care to aid/assist patrons. Also, places of public accommodation owe duty to prevent injury to guests/third person. d) Duty to control third persons: generally, no duty to prevent third person from injuring another. HOWEVER, duty may be imposed IF one has the ACTUAL ABILITY and AUTHORITY to control a person’s actions, and knows/should know the person is likely to commit acts that would require exercise of this control.

Question 26

(Neg) ii) Breach Where D falls short of level required by the applicable standard of care owed to P. P may use following theories to show proof of breach:

Answer 26

1) custom/usage: may establish standard of care, but does not control the question of whether certain conduct amounted to negligence. 2) Violation of Statute: breach may be established as a matter of law by proof that D violated an applicable statute (neg per se). Causation and damages must still be established by P. 3) Res Ipsa Loquitor: requires P show that A) accident causing injury is type that wouldnt occur unless there was negligence and B) negligence is attributable to D (usually by exclusive control). a) effect of res ipsa (where re ipsa is established, P has made a prima facie case and no directed verdict may be given for D. P can still lose, however, if the inference of negligence is rejected by the trier of fact) TIP: questions with re ipsa often have D making motion for directed verdict. All you need to remember for these are: i) Deny D’s motion for Dir Verdict IF P has established res ipsa ii) Grant D’s motion IF P failed to establish res ipsa

Question 27

(Neg) iii) Causation Once negligent conduct is shown (breach of duty owed to foreseeable P), P must show that conduct was cause of injury. For liability to attach, both Actual and Proximate cause must be shown

Answer 27

1) Actual (Causation in fact): before proximate cause is established, must establish actual cause of P’s injury. Several tests exist: a) But for: test applies where several acts (each sufficient to cause the injury alone) combine to cause the injury. b) Joint causes–Substantial factor: where several causes bring about injury, and any one alone would be sufficient to cause the injury, D’s conduct is the cause in fact IF it was a substantial factor in causing the injury. c) Alternative causes: when there are two acts, only one of which cause the injury, but not known which one cause injury. The burden of proof shifts to D’s, and each must show that his negligence is not the actual cause. TIP: distinguish the last two tests: under joint causes, both parties cause harm; under alternative causes, although both parties acted negligently, only one caused the harm. 2) Proximate Cause (Legal Causation): this doctrine is a limitation of liability and deals with liability/nonliability for unforseeable or unusual consequences of ones acts.

Question 28

(Neg) iii) Causation 2) Proximate Cause

Answer 28

a) General Rule–Scope of Foreseeable Risk: D is generally liable for all harmful results that are normal incidents of and within the increased risk of his acts (foreseeability test) TIP: questions raising proximate cause issues will often be whether one/both parties are entitled to summary judgment–which should be denied if there is ANY ISSUE OF FORESEEABILITY for the jury (should be clear cut, common sense whether harm that occurred was foreseeable) b) Liability in Direct Cause Cases: where uninterrupted chain of events from D’s negligent act to P’s injury, D is liable for all FORESEEABLE harmful results, regardless of unusual manner/unusual timing in which they arose. D not liable for UNFORESEEABLE harmful results not within risk created by D’s negligence. Most harmful results will be deemed foreseeable in direct cause cases. c) Liability in Indirect Cause Cases: intervening force (e.g. act by third person, act of God) that comes into motion after D’s negligent act and combines with it to case P’s injury. 1) Foreseeable results Caused by Foreseeable Intervening forces–D Liable: D liable where his negligence caused foreseeable result from a dependent intervening force/created foreseeable risk that independent intervening force would harm P. i)Common Dependent Intervening Forces: almost always FORESEEABLE: (e.g. subsequent medical malpractice; negligence of rescuers; efforts to protect the person/property of oneself/another; injuries caused by another ‘reacting’ to D’s actions; subsequent diseases caused by a weakened condition; subsequent accident substantially caused by the original injury.) ii) Independent Intervening Forces (e.g. negligent acts of third persons; crimes and intentional torts of third persons; acts of God) 2) Foreseeable Results by Unforeseeable Intervening Forces–D usually Liable: D liable where neglig. increased risk of a foreseeable harmful result and that result ultimately produced intervening force. doesnt apply where intervening force is crime/intentional tort of third person. 3) Unforeseeable Results Caused by Foreseeable Intervening Forces–D not Liable: rare: unforeseeable result caused by foreseeable intervening force, D not liable. 4) Unforeseeable Results Caused by Unforeseeable Intervening Forces–D not Liable: Intervening forces that produce unforeseeable results (results not w/in increased risk created by D’s negligence) are generally deemed unforeseeable and SUPERSEDING. Superseding forces BREAK the causal connection btw D’s initial negligent act and P’s injury. d) Unforeseeable Extent or Severity of Harm–D Liable: in all cases, D takes P as he finds him (i.e. eggshell skull P rule)

Question 29

(Neg) iv) Damages Damage will not be presumed (and nominal damages are not available)

Answer 29

1) Personal Injury: P to be compensated for all damages (past, present, future), both for ECONOMIC (e.g. med expenses) and NONECONOMIC (e.g. pain and suffer). Foreseeablity as to EXTENT of harm irrelevant (D takes P as he finds him). P suffering PHYSICAL injury can also recover for resulting emotional distress. 2) Property Damage: measure of damage is reasonable cost of repair, or if destroyed, FMV at time of accident. 3) Punitive Damages: generally not available UNLESS D’s conduct is ‘wanton and willful,’ reckless, or malicious. 4) nonrecoverable Damages: interest from date of damage in P.I. action and atty fees. 5) Duty to Mitigate: all cases, P has duty to take reasonable steps to mitigate damages (seek appropriate treatment) 6) Collateral Source Rule: damages not reduced just bc P received benefits from insurance/other sources

Question 30

(Neg) DEFENSES to Negligence

Answer 30

1) Contributory Negligence: negligence on part of P that contributes to P’s injuries. P’s violation of applicable statute may be used to establish contributory negligence. 2) Assumption of the Risk: P maybe be denied is assumed the risk of any damage caused by D’s act. P must have i) known of the risk and ii) voluntarily proceeded in face of the risk. 3) COMPARATIVE NEGLIGENCE: P’s contributory NEGLIGENCE NOT A COMPLETE BAR TO RECOVERY. Trier of fact weighs P’s negligence and reduces damages accordingly (e.g. if P is 10% at fault–>damages reduced by 10%). Majority have adopted partial comparative negligence, which still bars P’s recovery if his negligence was more serious than D’s negligence. States that have adopted PURE comparative Negligence allow recovery no matter how great P’s negligence was. EXAM TIP: MBE, assume that PURE COMPARATIVE NEGLIGENCE applies unless states otherwise. LAST CLEAR CHANCE doctrine not used in COMPARATIVE NEGLIGENCE JURISDICTIONS.

Question 31

(Neg) DEFENSES to Negligence 1) Contributory Negligence negligence on part of P that contributes to P’s injuries. P’s violation of applicable statute may be used to establish contributory negligence.

Answer 31

a) As defense to D’s violation of statute: contrib neg is a defense to neg proved by D’s violation of statute UNLESS statute designed to protect this class of P’s from incapacity/lack of judgment (e.g. kid injured after darting into street in school zone after getting hit by speeding car of D) b) No defense to intentional torts: not a defense to wanton/willful misconduct/intentional tort. c) Effect of contributory negligence: contrib neg completely barred plaintiff’s right to recovery at common law. Majority now favor comparative neg system. d) Last clear chance (LCC): permits P to recover despite contrib negligence. Under this rule, the person with last clear chance to avoid accident who fails to do so is liable for neg (essentially P’s rebuttal to D’s defense of contrib neg) 1) Helpless peril: in many states, where P is in ‘helpless peril’, D will be liable if he knew/should have known of P’s predicament 2) Inattentive peril: (e.g. P could have extricated self if attentive), D must actually have known of P’s predicament. 3) Prior negligence cases: for LCC doctrine to apply, D must have been able to, but failed, to avoid harming P at time of accident. If D’s only neg occurred earlier, the dcotrine will not apply. e) Imputed Contributory Negligence: general rule: contrib neg of third party will be imputed to a P (and bar her claim) only when the relationship btw third party and P is such that court could find P vicariously liable for third party’s neg. Neg is imputed to ER-EE, partner, and joint venturer relationships. Neg is not imputed btw husband and wife, parent-child, and car-owner and driver.

Question 32

(Neg) DEFENSES to Negligence 2) Assumption of the Risk P maybe be denied is assumed the risk of any damage caused by D’s act. P must have i) known of the risk and ii) voluntarily proceeded in face of the risk.

Answer 32

a) Implied assumption of Risk: knowledge may be implied where risk is one that average person would clearly appreciate. P may NOT be said to have assumed the risk where no available alternative to proceeding the risk involving fraud, force, or emergency. Common carriers/public utilities may not limit their liability by disclaimer. b) Express Assumption of Risk: may be assumed by express agreement c) No defense to Intentional torts: BUT IS a defense to wanton willful misconduct.

Question 33

(Neg) DEFENSES to Negligence 3) Comparative Negligence

Answer 33

COMPARATIVE NEGLIGENCE: P’s contributory NEGLIGENCE NOT A COMPLETE BAR TO RECOVERY. Trier of fact weighs P’s negligence and reduces damages accordingly (e.g. if P is 10% at fault–>damages reduced by 10%). Majority have adopted partial comparative negligence, which still bars P’s recovery if his negligence was more serious than D’s negligence. States that have adopted PURE comparative Negligence allow recovery no matter how great P’s negligence was. EXAM TIP: MBE, assume that PURE COMPARATIVE NEGLIGENCE applies unless states otherwise. 1) LAST CLEAR CHANCE doctrine not used in COMPARATIVE NEGLIGENCE JURISDICTIONS. 2) Assumption of the Risk: Implied assumption analyzed as either i) limitation on duty owed to P (i.e. D doesnt owe duty to protect P against known risks [hit by foul ball at ball game); OR ii) contrib negligence (i.e. P unreasonably encountered a known risk thereby reducing/barring damages under state’s compar. neg rules). ii) most common. 3) Wanton and willful conduct: P’s neg will be taken into account even though D’s conduct ‘wanton and willful’ or ‘reckless’. However, P’s neg still no defense to intentional tortious conduct by D.

Question 34

STRICT LIABILITY (Elements)

Answer 34

i) Nature of the D’s activity imposes an ABSOLUTE duty to make safe; ii) the dangerous aspect of the activity was the ACTUAL AND PROXIMATE cause of P’s injury; AND iii) P suffered DAMAGE to person/property

Question 35

Strict liability

Answer 35

1) Liability for Animals i) trespassing animals: owner strictly liable ii) Personal Injuries a) Strict liability for Wild Animals: owner strictly liable to invitees and licencees for injuries caused by wild animals (even those kept as pets) b) No strict liability for Domestic Animals: no liability UNLESS owner has KNOWLEDGE of that particular animal’s dangerous propensities that are not common to species. Injury caused by the normally dangerous characteristics of domestic animals DOES NOT create strict liability. c) Strict Liability Not Available to Trespassers: not imposed in favor of trespassers in absence of owner’s negligence. However, owner may be liable if injury from vicious watchdog. 2) Abnormally Dangerous Activities: two requirements to find activity abnormally dangerous: i) activity must create foreseeable risk of SERIOUS HARM EVEN WHEN REASONABLE CARE is exercised by all actors; and ii) activity is NOT A MATTER OF COMMON USAGE in the community. TIP: NO AMOUNT of reasonable care on part of D will relieve him of liability in strict liability situation. 3) Extent of Liability i) Harm must not result from normally dangerous characteristics: the harm must result from the kind of danger to be anticipated from the dangerous activity or animal (including harm caused by fleeing perceived danger). Hence, strict liability DOESNT apply when injury caused by something other than dangerous aspect of the activity (e.g. dynamite truck blows tire and hits pedestrian but doesnt explode) ii) Defenses: In Contrib neg states: contrib neg is no defense if P failed to realize the danger or guard against it. It IS a defense if P knew of danger and his unreasonable conduct was the very cause of the harm from the wild animal or abnormally dangerous activity. MOST COMPARATIVE Neg states apply comparative neg rules to strict liability cases.

Question 36

PRODUCTS LIABILITY (Supplier of defective product to someone injured by the product) [1) 5 theories; 2) common elements; 2a) types of defects; 2b) proving defect; 2c) existence of defect when product left D’s control]

Answer 36

1) Theories of liability: a) Intent b) Negligence c) Strict liability d) implied warranties of merchantability and fitness for particualar purpose e) Representation theories (express warranty and misrepresentation) 2) Common Elements (P must show i) a DEFECT and ii) existence of defect when PRODUCT LEFT D’s CONTROL a) Types of Defects i) Manufacturing (product emerges from manufacturing diff from and more dangerous than products that were made properly). ii) Design Defects (all products in line the same but have dangerous propensities) iii) Inadequate warnings (manufacturer’s failure to give adequate warning of risks in using product that may not be apparent to users. b) Proving a Defect i) Manufacturing: D is liable if P can show that product failed to perform as consumer would expect (D must ANTICIPATE MISUSE). ii) Design: P must show D could have made product safer without serious impact on price/utility (reasonably feasible alternative) iii) Govt Safety Standard (products NONCOMPLIANCE w/govt safety standards establishes defect, while COMPLIANCE is evidence–but not conclusive–of nondefective nature of product) iv) Scientifically Unknowable Risks (D wont be held liable for dangers not foreseeable at time of marketing) v) Unavoidably unsafe products (Manufacturer’s wont be held liable if dangerousness of product is apparent [knives]) c) Existence of Defect when Product left D’s control: must have existed. Will be inferred if product moved through normal channels of distribution. TIP: Favorite Wrong choice: fact that there is no contractual privity btw P and D. DOESNT MATTER in strict liability or negligence.

Question 37

Products Liability 1) Theories of liability: a) ***INTENT*** b) Negligence c) Strict liability d) implied warranties of merchantability and fitness for particualar purpose e) Representation theories (express warranty and misrepresentation)

Answer 37

INTENT: D will be liable to P injured by unsafe product if D intended consequences/knew they were substantially certain to occur. Products liability based on intent are NOT common. If intent is present, most likely tort is battery. 1) who can sue? Privity not required, so any injured P can sue. 2) Damages: compensatory and punitive damages available. 3) Defenses: intentional tort defenses available.

Question 38

Products Liability 1) Theories of liability: a) Intent b) ***NEGLIGENCE*** c) Strict liability d) implied warranties of merchantability and fitness for particualar purpose e) Representation theories (express warranty and misrepresentation)

Answer 38

NEGLIGENCE: P must show i) Duty ii) Breach, iii) Causation and iv) Damages. 1) Duty of care: owed to any foreseeable P. a) Who can sue? any foreseeable P: users; consumers; bystanders included. b) Who can be held liable? Commercial suppliers like manufacturers, wholesalers, and retailers can be held liable. 2) Breach of duty: breach shown by i) negligent conduct of D leading to ii) supplying a defective product a) Proof of negligence: same standard as negligence case. P may invoke res ipsa. b) Liability of retailers and wholesalers: difficult to hold retailers and wholesalers liable for negligence bc they can satisfy duty through cursory inspection. 3) Causation: An intermediary’s (wholesaler’s) negligent failure to discover defect doesnt supersede the original manufacturer’s negligence UNLESS conduct exceeds ordinary foreseeable negligence. 4) Nature of damages recoverable: Phycisal injury or property damage must be shown. Recovery will be denied if sole claim is for economic loss. 5) Defenses: same as general negligence action.

Question 39

Products Liability 1) Theories of liability: a) Intent b) Negligence c) ***STRICT LIABILITY*** d) implied warranties of merchantability and fitness for particualar purpose e) Representation theories (express warranty and misrepresentation)

Answer 39

STRICT TORT LIABILITY: i) commercial supplier of product ii) producing/selling defective product iii) actual and proximate cause and iv) damages. For liability to attach, product must reach P w/out substantial alteration. 1) Who can sue? users, consumers, bystanders–privity NOT required. 2) Who can be held liable? any commercial supplier. Casual sellers not held strictly liable. a) Doesnt extend to services: only applies to products. Even where product is provided incident to service (blood during operation), there is no strict liability. P may sue in negligence, however. 3) Production/Sale of defective product: P must show that product is defective. Defect must make product dangerous beyond expectation of ordinary consumer. Retailers may be liable even if no opportunity to inspect the product. 4) Causation: For actual cause, P must show that the defect existed WHEN THE PRODUCT LEFT D’s CONTROL. Proximate cause is same as negligence cases. 5) Nature of Damages Recoverable: Physical Injury or property damage must be shown. Recovery denied if solely for economic loss. 6) Defenses: in Contributory Neg states, ordinary contrib neg is no defense where P merely failed to discover defect or guard against its existence, or where P’s misuse was reasonably foreseeable. Assumption of risk is a defense. In MOST COMPARATIVE NEG states: courts will apply their comparative neg rules. 7) Disclaimers Ineffective: disclaimers irrelevant.

Question 40

Products Liability 1) Theories of liability: a) Intent b) Negligence c) Strict liability d) ***IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE*** e) Representation theories (express warranty and misrepresentation)

Answer 40

IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE: two warranties are implied in every sale of goods that can serve as basis of suit by buyer against seller. i) Merchantability: refers to whether good are of average acceptable quality and are generally fit for the ordinary purpose for which goods are used; and ii) Fitness for particular purpose: arises when seller knows/has reason to know the particular purpose for which the goods are required and that buyer is relying on the seller’s skill and judgment in selecting goods. ————————- 1) Who can sue? buyer, family, household and guests can sue for personal injuries. 2) What constitutes breach? of product fails to live up to either standards, warranty is breached and D liable. P does not have to prove fault on part of D. 3) Causation: actual and proximate cause as in negligence cases 4) Damages: personal injury, property damage, AND PURELY ECONOMIC loss ARE RECOVERABLE 5) Defenses: Assumption of the risk (using product while knowing of breach of warranty); and contributory negligence to same extent as strict liability cases. Failure to give notice of breach is a defense under UCC. 6) Effect of disclaimers: disclaimers REJECTED in personal injury cases BUT UPHELD for economic loss.

Question 41

Products Liability 1) Theories of liability: a) Intent b) Negligence c) Strict liability d) implied warranties of merchantability and fitness for particualar purpose e) ***REPRESENTATION THEORIES (EXPRESS WARRANTY AND MISREPRESENTATION)***

Answer 41

REPRESENTATION THEORIES (EXPRESS WARRANTY AND MISREPRESENTATION): some affirmative representation: the two are: 1) Express Warranty: any affirmation of fact/promise that becomes basis of the bargain creates an express warranty. a) who can sue? consumer, user, bystander. IF BUYER sues: warranty must have been “part of the basis of the bargain.” IF P is not in privity (e.g. bystander), she need not have relied on the representation as long as SOMEONE did. An express warranty may also be made in a lease of goods. b) Breach: fault need not be shown to establish breach. P need only show product didnt live up to its warranty. c) Causation, Damages, defenses: same as implied warranties. d) Disclaimers: EFFECTIVE ONLY in unlikely event that it is consistent with the warranty. 2) Misrepresentation of fact: seller liable for misrep of facts concerning product where: i) statement was of a material fact concerning quality or uses of goods (mere puffery insufficient), and ii) seller intended to induce reliance by the buyer in a particular transaction. a) Justifiable Reliance: is required (i.e. the representation is a substantial factor in inducing the purchase). Reliance need not be victim’s (may be the prior purchaser’s). Privity is irrelevant. b) Causation and Damages: Actual cause shown by reliance. Proximate same as strict liability c) Defenses: assumption of the risk is NOT a defense IF P is entitled to rely on the representation.

Question 42

NUISANCE (2 types)

Answer 42

Not a tort in itself, but rather a type of harm–invasion of either private property rights or public rights by conduct that is tortious bc it falls in categories of tort liability (i.e. intentional, negligent, strict liability). Two types: Private and Public: a) Private Nuisance: a substantial, unreasonable interference with another private individual’s use or enjoyment of property that he actually possesses/has right to immediate possession. TIP: nuisance MBE questions will often flag the correct choice with key term from definition of nuisance (e.g. D created “substantial” or “unreasonable” interference w P’s use of land) b) Public Nuisance: act that unreasonably interferes with the health, safety, or property rights of the community (e.g. using building for criminal activities like prostitution). Recovery by private party available for public nuisance ONLY IF private party suffered unique damage not suffered by public at large.

Question 43

NUISANCE a) Private Nuisance: a substantial, unreasonable interference with another private individual’s use or enjoyment of property that he actually possesses/has right to immediate possession.

Answer 43

1) Substantial Interference: is offensive, inconvenient, or annoying to the average person in the community. It is NOT SUBSTANTIAL If merely result of P’s hypersensitivity/specialized use of own property. 2) Unreasonable interference: to establish unreasonable interference (required for nuisance based on intent or negligence), severity of injury must outweigh utility of D’s conduct. Balancing test. 3) Trespass to Land Distinguished: In a TRESPASS, there is an interference w/landowner’s EXCLUSIVE POSSESSION by a physical invasion; in PRIVATE NUISANCE, there is interference with USE OR ENJOYMENT.

Question 44

NUISANCE b) Public Nuisance:

Answer 44

act that unreasonably interferes with the health, safety, or property rights of the community (e.g. using building for criminal activities like prostitution). Recovery by private party available for public nuisance ONLY IF private party suffered unique damage not suffered by public at large.

Question 45

NUISANCE c) Remedies

Answer 45

1) Damages: P usually awarded Damages 2) Injunctive Relief: if legal remedy of damages unavailable/inadequate (nuisance will cause irreparable injury), injunctive relief will be awarded. However, hardships will not be balanced where D’s conduct was willful. 3) Abatement by Self-help: in case of private nuisance, self-help abatement is available after notice to D and his refusal to act. Only necessary force may be used. In Public nuisance, only a public authority or a private party that suffered unique damage can seek injunction or abatement.

Question 46

NUISANCE d) Defenses

Answer 46

1) Legislative Authority: zoning ordinance not an absolute, but persuasive. 2) Conduct of Others: each D liable only for damage caused by it–not others. (ten plants polluting stream, each is responsible only for the pollution it causes) 3) Contributory Neg: not a defense UNLESS P’s cases rests on negligence theory. 4) Coming to the nuisance: (purchasing land next to already existing nuisance) and thereafter pursue action. USUALLY NOT A BAR UNLESS P came to nuisance solely to sue/harass.

Question 47

General Considerations for all Tort Cases

Answer 47

a) Vicarious Liability b) Parties–Multiple D Issues

Question 48

General Considerations for all Tort Cases a) Vicarious Liability One person commits tort against third party and another person is held liable to third party for this act.

Answer 48

1) Doctrine of Respondeat Superior: a master/ER will be vicariously liable for tortious acts that occur within scope of employment. a) Frolic and Detour: EE making minor deviation from ER’s biz for his ow purposes is still acting within scope of employment. If deviation is substantial, the ER is not liable. b) Intentional Torts: generally, EE’s intentional tortious conduct is not within scope of employment UNLESS: i) force is authorized by employment (bouncer); ii) friction generated by employment (bill collector); iii) EE furthering biz of ER (removing rowdy customers from premises) c) Liability for own negligence: in selecting or supervising EE’s–> liable. (This is NOT vicarious liability.) 2) Independent contractor situations: generally, ER not vicariously liable for tortious act of agent UNLESS: i) independent contractor engaged in inherently dangerous activity (excavating next to public sidewalk or blasting); ii) duty is not delegable (building fence around excavation site) a) Liability for own negligence: in selecting or supervising EE’s–> liable (hospital liable for contracting unqualified staff who negligently treats patient). (This is NOT vicarious liability.) 3) Partner and Joint Venturers: each member is vicariously liable for another member’s tortious conduct when committed in scope and course of affairs of the partnership/joint venture. 4) Automobile owner for driver: generally, owner not vicariously liable for tortious conduct of driver. a) family car doctrine: owner liable for tortious conduct of family member/haousehold driver with owner’s express/implied consent. b)Permissive Use: owner liable if driver driving with owner’s consent. c) Liability for own negligence–negligent entrustment: owner liable for own negligence in negligently entrusting car to driver.(Not vicarious liability). 5) Bailor for Bailee: generally, bailor not liable for tortious conduct of bailee UNLESS bailor negligently ENTRUSTED the bailed object. 6) Parent for child: generally, parent not liable for kids torts. UNLESS child acting as agent for parents, or parent negligently allows child to do something (use dangerous object without proper instruction). 7) Tavernkeepers a) Common law: no liability imposed on vendors for drunk patrons harmful acts. b) Modern law: in absence of dramshop act, courts impose liability on taverkeeper when liabilty based on ordinary negligence principles (foreseeable risk of serving person that harmfully acts). Dramshop acts (rule in favor of injured third party against owner). TIP: recognizing whether doctrine applies is only first step. Even where D is not vicariously liable, P may prevail if D personally was negligent in supervising the person causing injury.

Question 49

General Considerations for all Tort Cases b) Parties–Multiple D Issues

Answer 49

1) Joint and Several liability: where 2/more acts combine to proximately cause indivisible injury, each negligent actor will be jointly and severally liable to P (for entire amount). If divisible, each D liable for only identifiable portion. a) D’s acting in concert: each jointly and severally liable for entire injury, even if injury is divisible. b) Statutory limit: if state abolished joint liability, liability will be proportional to D’s fault. 2) Satisfaction and release: recovery of full payment is satisfaction. Only one satisfaction allowed. Until satisfaction, however, P may proceed against all jointly liable D’s. Release of one tortfeasor doesnt discharge others UNLESS provided for in agreement. 3) Contribution and Indemnity: doctrines that determine how joint tortfeasors allocate btw them the damages they must pay to successful P. TIP: none of these affect how much P receives, ONLY deals with claims by D against other joint tortfeasors to determine how much each D must pay. a) Contribution: rule that allows d that pays more than fair share to collect from other D’s. i) Methods of apportionment -Comparative contribution: majority rule: imposed in proportion to relative fault of various D’s. -Equal shares: minority rule: equal shares regardless of fault ii) Not applicable to Intentional Torts: contribution not allowed b) Indemnity: shifting entire loss btw/among tortfeasors. Available i) by contract ii) in vicarious liability situations iii) strict products liability. TIP: to keep contribution and indemnity separate in your mind, recall that, for contribution to apply, generally both D’s must have measurable degree of culpability for the tort. On the other hand, indemnity usually applies when paying D is much less responsible than nonpaying D.