MBE - Torts with GA Distinctions

Question 1

What are the three main elements of an intentional tort?

Intentional Torts

Answer 1

(1) Tortious Conduct (an Act or Omission)
(2) Requisite Mental State (Intent)
(3) Causation

Question 2

When a defendant acts with intent to complete a tort, it means the actor…

Intentional Torts

Answer 2

An actor acts with intent when the actor either:
* (1) acts with the purpose of causing the consequence; OR
* (2) knows that the consequence is substantially certain to occur.

NOTE: The conduct has to be intended; not the offense.

Question 3

Can children and mentally incompetent persons be liable for intentional torts?

Intentional Torts

Answer 3

Yes, if they have the requisite intent.

Question 4

What are the intentional torts?

Intentional Torts

Answer 4

• (1) Battery
• (2) Assault
• (3) Intentional Inflicition of Emotional Distress
• (4) False Imprisonment
• (5)Trespass to Land
• (6) Trespass to Chattels
• (7) Conversion

Question 5

When does a Battery occur?

Intentional Torts

Answer 5

A Battery occurs when the defendant makes an
* (1) intentional act
* (2) harmful or offense (that (a) offends a reasonable sense of personal dignity or (2) that the defendant knows is highly offensive to the plaintiff’s sense of personal dignity
* (3) with the plaintiff’s person or anything connected to the plaintiff.

Note that the victim need not be conscious of the touching.
The contact can be direct or indirect.

No proof of actual harm required; Nominal damages alone are sufficient. Plaintiff can also recover damages from physical harm flowing from the battery.

Plaintiff can also recover damages from the physical harm flowing from the battery
* “Eggshell Plaintiff Rule: a ∆ is liable for all harm that flows from a battery, even if it is much worse than the ∆ expected it to be.

Many states allow punitive damages if the ∆ acted: outrageously OR with malice.

Question 6

When does an Assault occur?

Intentional Torts

Answer 6

An Assault occurs when the defendant makes an
* (1) intentional act;
* (2) that causes the plaintiff to be placed in reasonable apprehension;
* (3) of an imminent harmful or offensive contact with the plaintiff’s person.

Intentional: Defendant acted (a) with the purpose of causing such apprehension OR (b) with knowledge that the apprehension was substantially certain to occur.

Reasonable Apprehension: Note that the plaintiff must be aware of the defendant’s act AND believe the defendant is able to commit the act.

No proof of actual damages necessary. Nominal damages alone are sufficient. Can also recover damages from physical harm flowing from the assault. Punitive damages may be available.

Mere words are not gen. sufficient; but words can constitute assault IF the ∆ is able to carry out the threat immediately and takes action designed to put the victim in a state of apprehension.

Threats conditioned on future events even if unjustifiable does not constitute assault. Threats must be w.o significant delay if not immediate.

Question 7

When does Intentional Infliction of Emotional Distress (IIED) occur?

Intentional Torts

Answer 7

Intentional Infliction of Emotional Distress (IIED) occurs when the defendant engages in
* (1) intentional or reckless conduct
* (2) that was extreme and outrageous (exceeding all bounds of human decency)
* (3) that causes the plaintiff severe emotional distress (causation); AND
* (4) the plaintiff actually suffered severe emotional distress (damages)

Intentional:
* For the purpose of (a) causing such severe emotional distress; OR (b) with knowledge that such severe emotional distress is substantially certain to occur.

Reckless:
* A deliberate disregard of a high risk that emotional distress will follow.

Causation: ∆’s actions must be the cause in fact of the π’s harm
Damages:
* π must prove severe emotional distress beyond what a reasonable person would endure.
Hypersensitivity:
* if π experiences unreasonable level of emotional distress, the ∆ only liable if they knew of the π’s hypersensitivity.

Physical injury not required.

Note that Courts are more likely to find conduct or language to be extreme and outrageous IF:
* the ∆ is in a position of authority or influence over the π; OR
* the π is a member of a group that has a heightened sensitivity (e.g., young children or elderly)

Question 8

If conduct is directed at a third party: D is liable for intentional/reckless infliction of emotional distress caused to WHO?

Intentional Torts

Answer 8

The Defendant is liable for intentional/reckless infliction of emotional distress caused to:
(a) A member of such person’s immediate family present at the time; OR
(b) Any other person present, IF it results in bodily harm.

Question 9

What are the constitutional limits on a public figure’s recovery under Intentional Infliction of Emotional Distress?

Intentional Torts

Answer 9

To recover for IIED as a public figure/official, Public figures and public officials must show that the words:

• (1) contain a false statement of fact that was
• (2) made with actual malice.

Actual Malice: with knowledge that the statement was false or with reckless disregard of its potential falsity.

Private plaintiffs: the Supreme Ct has suggested that even private plaintiffs cannot recover if the conduct is speech in the context of a matter of public concern.

Question 10

When does False Imprisonment occur?

Intentional Torts

Answer 10

False imprisonment occurs when the defendant makes an
* (1) intentional act or inaction
* (2) to directly or indirectly confine or restrain the plaintiff to fixed boundaries (with no reasonable means of escape); AND
* (3) the plaintiff is aware of the confinement OR harmed by it.

Intentional:
* (a) purposefully bringing about the confinement; OR (b) knowing the confinement is substantially certain to occur.

Confinement/Restraint:
* Use of physical barriers, physical force, threats, invalid invocation of legal authority, duress, or refusing to provide a safe means of escape when duty to do so (i.e., omission)

Time of Confinement immaterial; Boundary can be large or small; Confine due to ∆’s neglience? Not liable.

Note the Shopkeeper’s privilege exception?

Damages: π can recover nominal damages; actual damages are also compensable.

Question 11

What is the Doctrine of Transferred Intent? How does it satisfy the intent requirement when a ∆’s actions does not occur as planned?

Intentional Torts

Answer 11

The Doctrine of Transferred Intent states that the defendant’s intent to harm one party can be transferred when: (1) the defendant intends to commit a tort against one individual; AND (2) either:
* (a) commits a different tort against that person; OR
* (b) injures another person by the same or different tort.

Only applies to: Assault, Battery, False Imprisonment & Trespass to Land/Chattels.

Question 12

When will a merchant/shopkeeper NOT be liable for false imprisonment?

Intentional Torts

Answer 12

Under the Merchant’s/Shopkeeper’s Privilege, a merchant will not be liable for false imprisonment IF the merchant:
* (1) temporarily detain,
* (2) a person reasonably suspected of theft,
* (3) in or near their store;
* (4) for the purpose of investigation.

When a request to remain has been made and refuses, reasonable non-deadly force may be used to detain.

Question 13

When does Trespass to Chattels occur?

Intentional Torts

Answer 13

Trespass to Chattels occurs when the defendant makes an
* (1) intentional interference with the plaintiff’s right to possess personal property; BY
* (2) dispossession, use or intermeddling, or damage of the personal property.

Intentional:
* only intent to do the interfering act necessary, not intention to interfere.

Mistake:
* Mistake of the legality of the action is not a defense.

Damages:
* For dispossession of damage – may recover actual damages, damages from loss of use, cost of repair, or nominal damages.
* In cases of use or intermeddling – may only recover actual damages.

Question 14

How (with what factors) might a court determine that the defendant’s interference with a plaintiff’s personal property rises to Conversion rather than Trepass to Chattels?

Intentional Torts

Answer 14

Trespass to Chattels vs. Conversion: Courts consider the following factors with the ct more likely to find conversion the greater the interference:
* (1) the duration and extent of the conversion;
* (2) ∆’s intent to assert a right inconsistent w/ the rightful possessor;
* (3) ∆’s good faith;
* (4) expense or inconvenience to the π; and
* (5) extent of the harm.

Question 15

When does Conversion of personal property occur?

Intentional Torts

Answer 15

Conversion occurs when the defendant makes an (1) intentional interference with the plaintiff’s right to possess personal property (2) in a manner so serious as to deprive the plaintiff entirely of the use of the chattel.

Intentional:
* only intent to do the interfering act necessary, not intention to interfere.

Mistake:
* Mistake of law or fact NOT a defense.

Damages:
* Plaintiff can recover the chattel’s Full Value at the time of conversion (market)

Question 16

When does Trespass to Land occur?

Intentional Torts

Answer 16

Trespass to Land occurs when the defendant intentionally invades someone’s land BY:
* (1) entering the land physically (or remaining on the land); OR
* (2) propelling physical objects or a third party onto the land (or failing to remove an object ∆ has a duty to remove).

Intentional:
* only intent to enter the land or cause the physical invasion; not intent to trespass.

Mistake: of fact is NOT a defense.

Rightful Plaintiff:
* Anyone in possession of the land at the time of the trespass can bring an action, not just the owner.

Damages: No proof of actual damages required

Different from Nuisance because ALWAYS includes physical intrusion

*Rember the Private Necessity (partial defense) and Public Necessity (total defense) defenses.

Question 17

How does Private or Public Necessity provide a defense to Trespass to Land? It the Defense partial or complete?

Intentional Torts

Answer 17

The defendant is NOT liable for harm to the plaintiff’s property if the defendant’s intrustion was (or reasonably appeared to be) necessary to prevent serious harm to a person or property.

Private Necessity acts as a partial defense When ∆’s intrusion upon or harm of private property is necessary (or reasonably appears to be) to protect himself or a few others from serious harm.
* The ∆ is not liable for nominal damages
* ∆ is liable for actual damages they caused
* Landowner may not use force to exclude the person

Public Necessity acts as a complete defense When ∆ intrusion upon or harm of private property is necessary (or reasonably appears to be) to protect a large number of people from public calamity.
* NOT liable for damages to the property.

Question 18

How does Trespass to Land and Nuisance differ?

Intentional Torts

Answer 18

Trespass ALWAYS involves an actual physical invasion or intrusion upon the land.

Nuisance may or may not involve physical invasion or intrusion.

Question 19

When does Private Nuisance occur?

Intentional Torts

Answer 19

Private Nuisance occurs when the defendant makes a
* (1) substantial and unreasonable interference,
* (2) with a person’s use or enjoyment of her property; and
* (3) the interference is offensive or annoying to a reasonable person.

Hypersensitivity:
* Someone hypersensitive may not have a cause of action for the nuisance.
Unbothered:
* Someone who isn’t bothered by the nuisance may still have a cause of action if a reasonable person would be bothered.

Blocking Sunlight or Obstructing Views: Courts have refused to find the blocking of sunlight or obstruction of views a nuisance
* UNLESS it is a Spite Wall/Fence → If a person puts up a fence or wall with no purpose except to block a neighbor’s view, cts can find it a nuisance.

Note: Statutory Compliance and Coming to the Nuisance partial defenses.

Question 20

Does a defendant Blocking Sunlight or Obstructing Views constitute a private nuisance? If not, when may it be?

Intentional Torts

Answer 20

Courts have refused to find the blocking of sunlight or obstruction of views a nuisance UNLESS
* it is a spite wall/fence, meaning the defendant put up the fence or wall with no purpose except to block a neighbor’s view.

Courts can then find the spite wall a nuisance.

Question 21

What are defenses to Nuisance? Are they partial or complete defenses?

Intentional Torts

Answer 21

Defenses to Nuisance include:
* compliance with state or local administrative regulations (statutory compliance); or
* the plaintiff’s “coming to the nuisance” (knowingly moving to a neighborhood where there is a nuisance)

These are NOT complete defenses. They are factors for the court to consider.

Question 22

When does Public Nuisance occur?

Intentional Torts

Answer 22

A Public Nuisance occurs when the defendant makes an
* (1) unreasonable interference,
* (2) with a common right (health, safety, or property rights),
* (3) of the community or public.

Note that the plaintiff must show actual damages.

Public Official can bring an action on behalf of the public to abate the nuisance.
* A private individual generally cannot unless the plaintiff suffered special harm that is different from the general public.

Question 23

Who can bring a Public Nuisance action?

Intentional Torts

Answer 23

A Public Official can bring an action on behalf of the public to abate the nuisance.
* A private individual generally cannot unless the plaintiff suffered special harm that is different from the general public.

Question 24

When can a defendant claim Express Consent as a defense to an Intentional Tort Claim by a plaintiff?

Defenses to Intentional Torts

Answer 24

A defendant is NOT liable for an intentional tort when the plaintiff,
* (1) Expressly Consents,** through words or conduct**,
* (2) manifesting willingness to submit to the defendant’s conduct,
* (3) and the conduct is within the scope of the consent.

Capacity: Plaintiff must have the capacity to consent
Crime: Plaintiff cannot consent to a crime in some jurix.
Withdrawal: Plaintiff can withdraw consent at any time.

Consent by Mistake:
* Consent by a mistake of the plaintiff is still a valid defense unless the ∆ caused the mistake OR knew of and took advantage of the mistake .

Consent by Fraud:
* Invalid only if it goes to an essential matter. If collateral matter, defense still valid.

Question 25

When can a defendant claim Implied Consent as a defense to an Intentional Tort claim by a plaintiff?

Defenses to Intentional Torts

Answer 25

A defendant is NOT liable for an intentional tort if
* (1) in the circumstances,
* (2) the plaintiff’s silence and continued participation can be reasonably construed as Implied Consent.

Emergencies: In an emergency, it is reasonable to assume someone would allow a rescuer to touch him absent express consent.

Athletic Contests: Consent within the scope of the sport, but a ∆ can be liable if their conduct is reckless.

Mutual Consent to Combat will defeat a plaintiff’s claim of a intentional tort.

Question 26

Is a plaintiff who is injured while rescuing another able to recover from a defendant who negligently caused the harm to the person plaintiff attemped to rescue?

Proximate Cause

Answer 26

Yes. Under the rescue doctrine, a plaintiff-rescuer can recover for negligence if:
* (1) the plaintiff was injured while attempting to rescue another; and
* (2) that person’s peril was caused by the defendant’s negligence.

Question 27

When can a defendant claim self-defense as a defense to an intentional tort claim by a plaintiff?

Defenses to Intentional Torts

Answer 27

Self-defense/Defense of Others: The ∆ is NOT liable to the π if he:
* (1) reasonably believed the plaintiff was going to harm him or another; AND
* (2) used reasonable force that was necessary to protect himself or another.

Question 28

Does a person have a duty to retreat before exercising self-defense?

Defenses to Intentional Torts

Answer incudes a GA Distinction

Answer 28

Traditionally, most courts required retreat before one could use deadly force; Most courts do not require retreat before using reasonable, proportional force.

GA Distinction: In GA, a person who is justified in using force has no duty to retreat.

Question 29

Is a ∆ that is an Initial Aggressor permitted to claim self-defense ?

Defenses to Intentional Torts

Answer 29

An initial aggressor is NOT permitted to claim self-defense UNLESS the other party has responded to nondeadly force with deadly force.

Question 30

Is a person acting in self-defense liable for injury to bystanders?

Defenses to Intentional Torts

Answer 30

A person acting in self-defense is not liable for injury to bystanders as long as the injury was accidental and the actor was not negligent toward the bystander.

Question 31

In GA, when is it allowable for a person to use deadly force in self-defense?

Defenses to Intentional Torts

GA Distinction

Answer 31

In GA, a person is allowed to use force that is intended or likely to cause death/great bodily harm if he believes the force is necessary to:
* (1) prevents death or serious injury to himself or another person;
* (2) prevent or end a trespass of a habitation (dwelling, motor vehicle, place of work); or
* (3) prevent the commission of a forcible felony.

Question 32

When can a person use deadly force to prevent or end an attack on the person’s habitation?

Defenses to Intentional Torts

GA Distinction

Answer 32

Habitation: In GA, a person may use deadly force to prevent or end an attack on the person’s habitation IF:
* (1) entry is made in a violent or disorderly way or the person believes the entry is attempted or made for the purpose of assaulting someone in the dwelling and force is necessary to prevent the assault;
* (2) the person using force knew the entry was made unlawfully or forcibly; or
* (3) the person using force believes the entry is made in order to commit a felony.

Question 33

In GA, when can a person use deadly force to prevent the commission of a forcible felony?

Defenses to Intentional Torts

GA Distinction

Answer 33

In GA, a person may use force likely to cause serious injury or death only if he reasonably believes it is necessary to prevent the commission of a forcible felony.

Question 34

Can a person use deadly mechanical devices to defend property?

Defenses to Intentional Torts

Answer 34

A person may never use deadly mechanical devices (e.g., spring gun) to defend property.

Question 35

How may an owner of wrongfully taken chattels recapture the chattels?

Defenses to Intentional Torts

Answer 35

Recapture of Chattels: An owner of wrongfully taken chattels may take prompt action and use reasonable non-deadly force to reclaim the chattels from the wrongdoer, but ONLY if:
* the owner first requests the item’s return, UNLESS
* the request for return would be futile.

Question 36

Is a person allowed to use force to regain possession of land?

Defenses to Intentional Torts

Answer 36

• At common law, reasonable force is permitted;
• Under the Modern Rule, use of force no longer permtited, the person must only use the legal process.

Question 37

Do parents have a defense to intentional tort when disciplining their children?

Defenses to Intentional Torts

Answer 37

Parents may use reasonable force as necessary to discipline children.

Question 38

When is a private citizen permitted to use reasonable force to make an arrest in the case of a felony?

Defenses to Intentional Torts

Answer 38

A private citizen is permitted to use reasonable force to make an arrest in the case of a felony IF:
* (1) the felony has actually been committed; and
* (2) the arresting party has reasonable grounds to suspect that the person being arrested committed the felony.

In the case of a private citizen’s arrest for a felony, the following are NOT defenses:
* Identity Mistake: It is NOT a defense to make a reasonable mistake as to the identity of the felon.
* Felony Mistake: It is NOT a defense to make a reasonable misyae as to whether the felony was actually committed.

Question 39

When a private citizen makes an arrest in the case of a suspected felony, can they be mistaken as to the Identity of the person OR mistaken as to whether the Felony was actually committed?

Defenses to Intentional Torts

Answer 39

In the case of a private citizen’s arrest for a felony, the following are NOT defenses:
* Identity Mistake: It is NOT a defense to make a reasonable mistake as to the identity of the felon.
* Felony Mistake: It is NOT a defense to make a reasonable misyae as to whether the felony was actually committed.

Question 40

When is a private citizen permitted to make an arrest for a misdemeanor?

Defenses to Intentional Torts

Answer 40

A private person may only make an arrest for a misdemeanor IF there is a breach of the peace.

Question 41

When is a police officer permitted to make an arrest for a felony?

Defenses to Intentional Torts

Answer 41

A police officer is permitted to make an arrest for a felony if they:
* (1) reasonably believe a felony has been committed; and
* (2) that the person arrested committed it.

Note - Mistake: An officee that makes a mistake as to whether a felony has been committed is not subject to tort liability.

Question 43

When is a police officer permitted to make an arrest for a misdemeanor?

Defenses to Intentional Torts

Answer 43

A police officer may only make an arrest for a misdemeanor IF the misdemeanor was committed in the officer’s presence.

Question 44

What are the elements of a prima facie case for negligence?

Negligence

Answer 44

Elements for Prima Facie Case of Negligence:
* (1) Duty (obligation toward a party);
* (2) Breach of Duty (failure to meet that obligation);
* (3) Causation (actual -fact) and (proximate -legal); AND
* (4) Damages

A party must offer sufficient evidence to prove ALL of the above elements.

Question 45

Affirmative Duty: Generally, there is NO duty to act affirmatively, except in what situations?

Negligence - Duty

Answer includes GA Distinction

Answer 45

There is NO general duty to act affirmative, except IF:
* (1) authority or a special pre-existing relationship exists between the parties (e.g., parent-child; landowner-tenant)
* (2) the defendant put the plaintiff in peril
* (3) the defendant has already undertaken to rescue the plaintiff (but liable only if it increases the risk of harm OR harm is suffered because of reliance on the person providing help); OR
* (4) there is a duty imposed by law.

Unforeseeable Plaintiff: There is no liability to an unforeseeable plaintiff.

GA Distinction: GA’s Good Samaritan statute protects any person who renders emergency care in good faith (not just doctors and medical personnel)

Question 46

Is there a general duty of care owed to all persons?

Negligence - Duty

Answer 46

A duty of care is generally owed to all persons who may foreseeably be injured by the defendant’s course of conduct.

Question 47

What is the general/reasonable person standard of care?

Negligence - Duty

Answer 47

Every person owes a duty to act as a reasonable prudent person (RPP) would act under the circumstances?

Question 48

What standard of care are intoxicated persons held to?

Negligence - Duty

Answer 48

Intoxicated persons are held to the same standard as sober people – as a reasonable person without the intoxication.

UNLESS the intoxication is involuntary.

Question 49

What standard of care are persons with a Mental/Emotional Disability or Characteristics held to?

Negligence - Duty

Answer 49

Defendants with a mental or emotional condition must act as a reasonable person without the condition would act.

Objective Standard

Question 50

What standard of care are persons with a Physical Disability held to?

Negligence - Duty

Answer 50

Defendants with a physical disability must as as a reasonable person with the disability would act.

Question 51

What standard of care are children held to?

Negligence - Duty

Answer 51

Children must act as a reasonable child of similar age, experience, and intelligence acting under similar circumstances. EXCEPT:
* Children engaged in a high-risk adult activity (e.g., driving a car) have a duty to act as a reasonable adult.

Question 52

What standard of care are professionals held to? Specialists? Medical Doctors?

Negligence - Duty

Answer 52

Professionals:
* Professionals must act with the knowledge and skill as an average member of that profession participating in a similar community (professional —> doctors, lawyers, accountsnts, engineers, architects, nurses)

Specialists:
* If holding onself out as a specialist, then must act as an average member of that profession practicing that specialty.

Medical Doctor:
* A medical doctor is held to the degree of care and skill of an average qualified practitioner under a national standard.

Question 53

When do Psychologists/Psychotherapists have a duty to warn victims of a threat made by their patient?

Negligence - Duty

Answer 53

Psychologists/Psychotherapists have a duty to warn victims when their patient makes a credible threat IF:
* (1) the therapist believed the patient posed a real risk;
* (2) of serious physical violence;
* (3) to a readily identifiable victim; and
* (4) failed to take steps to warn the victim.

Question 54

What standard of care are common carriers and innkeepers held to?

Negligence - Duty

Answer 54

Common Carriers: Majority of courts hold common carriers to the highest duty of care consistent with the practical operation of the busineess.

Innkeepers: ordinary negligence standard.

Question 55

What standard of care are Automobile Drivers held to when guests or friends are passengers?

Negligence - Duty

Answer 55

Most jurisdictions apply a general duty of reasonable care to guests and friends in a car.

Traditionally, automobile drivers were liable for grossly negligent, wanton, or willful misconduct.

Question 56

What standard of care are Bailors and Bailees held to?

Negligence - Duty

Answer 56

• A Bailor must warn a gratuitious bailee of known dangerous conditions.
• If the BAILOR receives the sole benefit, then the bailee has a lesser duty.
• If the BAILEE receives a benefit, then he has a higher duty of care; even if slight negligence can result in liability.

Note: A Bailment is a temporary possession by a bailee of another’s (bailor’s) property (e.g., valet).

Question 57

What is the standard of care a person is held to in an emergency situation?

Negligence - Duty

Answer 57

In emergency situations, the standard of care is that of a reasonable person under the same circumstances.

Question 58

How is the duty of care required of a Land Owner or Posessor to Entrants determined?

Negligence - Duty

Answer 58

The duty of care is determined by the type of entrant.

Note: In some states, the landowner/possessor must exercise reasonable care under the circumstances to all entrants.

Question 59

What duty of care is owed by a Land Owner/Possessor to an Undiscovered Trespasser?

Negligence - Duty

Answer 59

Land Owners/Possessors do NOT owe a duty of care to undiscovered trespassers, but they must refrain from willful, wanton, intentional or reckless misconduct.

Question 60

What standard of care is owed by a Land Owner/Possesor to a Discovered or Anticipated Trespasser?

Negligence - Duty

Answer 60

When there is a discovered or anticipated trespasser (without permission but expected): the landowner or possessor has:
* (1) a duty of reasonable care in the operations on the property; and
* (2) must warn of (or make safe) dangerous artifical conditions the land owner knows of.

Question 61

What standard of care is owed by a Land Owner/Possessor to a Licensee?

Negligence - Duty

Answer includes GA Distinction

Answer 61

When the land entrant is a Licensee (social guest/entrant that has express or implied permission), the Land Owner/Possessor has a duty to:
* (1) make the property reasonably safe AND;
* (2) must warn of (or make safe) dangerous hidden conditions that are known to them.

GA Distinction: In GA, a licensee is someone who is permitted to go on the land for his own interests or convenience.
* Licensees are not customers/servants and have no contractual relationship with the land possessor;
* Only duty owed to licencees is a duty to avoid willful or wanton injury

Question 62

What standard of care is owed by a Land Owner/Possessor to an Invitee?

Negligence - Duty

Answer includes a GA Distinction

Answer 62

When the land entrant is an Invitee (entrant for owner’s benefit, or a business/economic purpose), the Land Owner/Possessor has a duty of
* (1) reasonable care to inspect the property, discover unreasonably dangerous conditions; AND
* (2) take reasonable steps to protect the invitee.

Non-delegable Duty: The Duty to invitees cannot be delegated by assigning care of the property to an independent contractor.

GA Distinction: In GA, an invitee is anyone the land possessor expressly or impliedly invited onto the land.
* The Land Possessor owes invitees a duty of ordinary care to keep the premises safe.
* Once the invitation goes beyond the scope of the invitation, the entrant is a licensee.

Question 63

Under the attractive nuisance doctrine what duty of care does a Land Owner/Possessor owe to child trespassers?

Negligence - Duty

Answer 63

Attractive Nuisance: A Landowner/Possessor may be liable for injuries to and owes a duty to child trespassers to make the premises reasonably safe or warn of hidden danger on the land IF:
* LO knows (or should know) of a dangerous artificial condition likely to cause death or serious bodily injury;
* (2) LO knows (or should know) children are likely to frequent the area
* (3) children are unlikely to discover the condition or appreciate the risks AND
* (4) the risk of harm outweighs the expense of making the condition safe.

Note: Attactive Nuisance DOES NOT APPLY if the child is engaging in an adult activity.

Question 64

Generally, what duty do landlords owe to the tenants of leased premises?

Negligence - Duty

Answer includes a GA Distinction

Answer 64

Generally, a landlord has NO duty to maintain the leased premises (unless provided for by law or contract), BUT, the landlord must:
* Maintain safe common areas;
* Warn of hidden dangers; and
* Repair hazardous conditions

Note: The tenant is liable for injuries arising from conditions within the tenant’s control.

GA Distinction: In GA, a landlord has a statutory duty to keep the premises in repair,
* and is liable for injuries resulting from any repairs made with his consent, as well as
* damages arising from defective construction.

Question 65

Does a landlord have a duty to make the premises safe from the criminal acts of third persons?

Negligence - Duty

Answer 65

• Common Law: At CL, the landlord has NO duty to make the premises safe from the criminal acts of 3rd parties
  BUT
• Modern: The modern trend is that the landlord had a duty to take reasonable precaution to protect a tenant against foreseeable attacks.

Question 66

In GA, what statutory duty does a landlord have when the property has been damaged by flooding 3 or more times in the last 5 years preceding a tenant’s lease?

Negligence - Duty

GA Distinction

Answer 66

In GA, if property has been damaged by flooding 3 or more times in the last 5 years preceding a lease, a landlord has a statutory duty to notify tenants in writing.
* If the landlord fails to give notice, he is liable in tort to the tenant for damages to personal property caused by flooding.

Question 67

What duty of care does a Land Possessor owe to an off-premises victim?

Negligence - Duty

Answer 67

When there is an off-premises victim, the Land Possessor is NOT liable for injuries resulting from natural conditions.
* The LO/Possessor must prevent unreasonable risk of harm to persons not on the premises.

Question 68

When is the standard of care breached under the Traditional/Reasonable Person approach?

Negligence - Breach of Standard of Care

Answer 68

Traditional Approach: Under the trad. approach, the standard of care is breached if the action is not what a reasonably prudent person would do under the circumstances.

Question 69

What is the standard of care breached under the Cost-Benefit Analysis approach?

Negligence - Breach of Standard of Care

Answer 69

Under the cost-benefit analysis approach, the standard of care is breached when the burden of the precaution is LESS than the probability of the harm X the severity of the loss
* There is a breach here because the burden of precaution should have been taken.

B < PL = Burden < (Prob. of Harm)(Severity of Loss)

Question 70

How is evidence of custom used when determining whether a general defendant (non-professional) breached the standard of care owed?

Negligence - Breach of Standard of Care

Answer 70

General ∆s: Evidence of custom is admissible, but not dispositive when determining whether a ∆ (non-professional) breached the standard of care owed.

Question 71

How is evidence of custom used when determining whether a professional- defendant breached the standard of care owed?

Negligence - Breach of Standard of Care

Answer 71

Professionals (lawyers, doctors, accountants, electricians, etc): Evidence of custom is admissible and dispositive when determining whether a defendant in his professional capacity breached the standard of care owed to the plaintiff.
* A professional’s compliance with the custom means no breach.
* If the professional deviates from the custom, the the professional breached.

Question 72

When must a physician get informed consent from patients re: medical procedures?

Negligence - Breach of Standard of Care

Answer 72

For physicians - Patients must give Informed Consent:
* Doctors must explain the risks of medical procedures.

Doctors are NOT required to inform the patient IF:
* the risks are commonly known;
* the patient is unconscious;
* the patient waives/refuses the information;
* the patient is incompetent; or
* the patient would be harmed by disclosure (e.g., it would cause a heart attack)

Question 73

When are the elements of duty and breach established under Negligence Per Se?

Negligence - Breach of Standard of Care

Answer 73

Under Negligence Per Se, the elements of duty and breach are established when the ∆ breaches a statute.

To use Negligence Per Se to prove duty and breach, a plaintiff must show:
* (1) the defendant violated a law or statute that imposes a duty for the protection of others;
* (2) the plaintiff is in the class of people the statute seeks to protect;
(3) the harm suffered is the TYPE of harm the statute seeks to prevent; AND
(4) the harm was caused by the violation.

Question 74

What defenses/excuses can a defendant use to defeat a plaintiff’s claim for negligence per se?

Negligence - Breach of Standard of Care

Answer 74

Defenses/Excuses to Negligence Per Se: ∆ can show
* (1) compliance with the statute would have been more dangerous than violating it;
* (2) compliance with the statute was impossible;
* (3) exercises reasonable care in trying to comply;
* (4) the statute is vague

Note - Violation by Plaintiff: A violation by the plaintiff counts as comparative or contributory negligence (depending on the jurisdiction)

Note - Compliance with a Statute: Generally, a ∆’s compliance with a statute does not necessarily constitute reasonable care; does not mean the person was NOT negligent (just can’t prove negligence per se).

Question 75

When the breach element is difficult to prove, how can the doctrine of Res Ipsa Locquitor be used to make circumstantial evidence sufficient?

Negligence - Breach of Standard of Care

Answer 75

Under Res Ipsa Locquitor, the breach element can be proven by circumstantial evidence if the plaintiff shows that:
* (1) the injury is of a kind that typically does not occur in the absence of negligence;
* (2) other responsible causes are sufficiently eliminated (including conduct of π and 3rd persons); AND
* (3) the negligence was within the scope of the duty owed to π.

Procedural effect: Creates a permissible inference/prima facie case of negligence to get the issue in front of the jury; and shifts the burden to ∆ to prove he is not responsible.

Sometimes there are issues with the (2) element, requiring no fault of the plaintiff. See the rules on π’s involvement.

Question 76

When Res Ipsa Locquitor applies in a medical malpractice case where medical personnel acted negligently to harm a plaintiff, how is liability apportioned?

Negligence - Breach of Standard of Care

Answer 76

Medical Malpractice: In cases where medical personnel acted negligently to harm a patient, a small # of jurisdictions shift the burden by holding ALL defendants jointly and severally liable unless they can exonerate themseves.

Question 77

When proving Res Ipsa Locquitor, must the defendant have had exclusivity of control in a products liability case?

Negligence - Breach of Standard of Care

Answer 77

Many courts ignore the exclusivity of control requirement when it is clear that the defect originated upstream of the package’s wrapping.

In this case, the 3rd Restatement can apply: Res Ipsa Locquitor proves breach when
* the accident is the type of accident/injury that ordinarily happens as a result of negligence of a class of actors;
* and the ∆ is a member of that class.

Question 78

How does a comparative fault jurisdiction apply the element of Res Ipsa Locquitor requiring that the plaintiff’s harm was not caused by an action of the plaintiff?

Negligence - Breach of Standard of Care

Answer 78

Comparative fault jurisdictions will loosey apply the element requiring that the harm not be caused by any action of the plaintiff.

Question 79

In proving negligence, what two types of causation must be proven by the plaintiff?

Negligence - Causation

Answer 79

The plaintiff must show that ∆’s conduct was both the: (1) Cause in fact (actual cause) and (2) Proximate cause (legal cause) of the injury.

Question 80

What is the “But-For” Test to prove Cause in Fact?

Negligence - Causation

Answer 80

Commonly used, a plaintiff that shows their injury would not have occurred “but for” the defendant’s negligence can prove actual cause.

However, when there are multiple or indeterminate causes and π cannot prove which of them caused the harm, the “Substantial Factor Test” can be used to prove cause in fact (actual cause).

Question 81

When there are multiple or indeterminate causes and the plaintiff cannot prove which of them caused the harm, how can the Substantial Factor Test be used?

Negligence - Causation

Answer 81

The “Substantial Factor Test” deems the conduct is an actual cause/cause in fact IF it is a substantial factor in bringing about the injury (even if there are multiple causes).

Mutliple or Indeterminate Causes: the but-for test is problematic in this situation;
* Multiple tortfeasors (π cannot prove which ∆’s conduct was req. to produce the harm) or
* Multiple Causes (π cannot prove which cause actually caused the harm)

Question 82

When the plaintiff’s harm was caused by only one of a few defendants (usually 2), and each was negligent so it cannot be determined which one caused the harm, how is liability apportioned under Alternative Causation?

Negligence - Causation

Answer 82

Alternative Causation: When the plaintiff’s harm was caused by only one of a few defendants (usually 2), and each was negligent so it cannot be determined which one caused the harm,
* Courts will shift the burden of proof to the ∆s, imposing
* Joint and several liability on both UNLESS
* One can show he did not cause the harm.

Question 83

If two or more tortfeasors were acting together collectively and that causes the plaintiff’s harm (Concert of Action), how is liabiity apportioned to those tortfeasors?

Negligence - Causation

Answer 83

Concert of Action: IF two or more tortfeasors were acting together collectively and that causes the plaintiff’s harm, then all the defendants will be jointly and severally liable.

Question 84

How does the Loss of Chance Doctrine affect causation and a plaintiff’s recovery?

Negligence - Causation

Answer 84

Loss of Chance Doctrine: If a physician negligently reduces a plaintiff’s chance of survival, then that plaintiff can recover for the lost chance of recovery. Plaintiff only recovers the portion that represents their lost chance of survival:
* (Chance of survival without misdiagnosis) – (Chance of survival after misdiagnosis) = Loss of Chance
* (% Loss of Chance) x (Total Damages) = Recovery

Question 85

Is there liability for an unforeseeable plaintiff?

Negligence - Causation

Answer 85

Remember, there is NO liability for an unforeseeable plaintiff whether that is characterized as a duty issue or a proximate cause issue.

Question 86

When determining whether a ∆’s conduct is the proximate cause of a plaintiff’s injury, what is required?

Negligence - Causation

Answer 86

Proximate cause exists when the injury that occurred was within the scope of the risk of the defendant’s breach. When this is so, the injury was the foreseeable result of the breach and there is proximate cause.

But note that ∆ is not liable for remote harms cause; sometimes the causal link can be broken (See Intervening Causes)

Question 87

What is an Intervening Cause?

Negligence - Causation (Proximate)

Answer 87

An Intervening Cause is an act that occurs after ∆’s breach that contributes to the plaintiff’s harm, which may or may not break the causal link.

Question 88

When is an Intervening Cause foreseeable (proximate), and when is it unforeseeable (no proximate cause)?

Negligence - Causation (Proximate)

Answer 88

Intervening causes that are dependent on or are a natural reaction to ∆’s wrongful acts —> are usually deemed foreseeable.
* Medical Malpractice: always deemed foreseeable.

Intervening causes that result in an unexpected TYPE of harm —> are usually deemed unforeseeable and ∆ is not liable. (Superseding Cause)
* Criminal Acts: are usually NOT foreseeable unless… (1) ∆ should have anticipated the criminal act; OR (2) ∆’s conduct makes the criminal act more likely

Question 89

If a plaintiff suffers from mental/physical conditions causing harm beyond what an ordinary person would suffer, is the defendant still liable for the extent of the their injuries?

Negligence - Causation

Answer 89

Type of Harm v. Eggshell Plaintiff: There is no liability for an unforeseeable TYPE of harm.

Eggshell Plaintiff Rule: Under the eggshell plaintiff rule, as long as the Type of harm is foreseeable, the ∆ is liable for the FULL EXTENT of the π’s injuries, wben if the EXTENT is unforeseeable.

Question 90

In what three ways can a plaintiff recover for Negligent Infliction of Emotional Distress (NIED)? What is the rule in GA?

Negligence - Special Rules of Liability

Answer includes GA Distinction

Answer 90

A plaintiff can recover for Negligent Infliction of Emotional Distress in 3 scenarios; IF:

Near Miss/Zone of Danger:
* (1) ∆’s negligence;
* (2) caused a foreseeable risk of physical impact;
* (3) the π is in the zone of danger; and
* (4) the π manifests physical symptoms

Bystander Recovery:
* (1) ∆’s negligence causes a bodily injury inflcited on π’s close family member (parent, child, spouse),
* (2) π contemporaneously witnessed the injury; AND
* (3) π manifests physical symptoms

Pre-existing Relationship (ônly available in egregious situations e.g., negligent mishandling of a corpse or negligent misdiagnosis):
* (1) the parties have a pre-existing relationship, AND
* (2) ∆’s negligent act foreseeably causes distress

GA Distinction - Impact: In GA, there is NO zone of danger rule. To recover for NIED, (1) ∆’s neglience must cause the plaintiff must suffer an impact OR (2) the defendant’s conduct must be malicious, willful, or wanton AND (3) the plaintiff’s physical injury caused emotional distress.

Question 91

When can a plaintiff recover for economic loss? Can a plaintiff recover for purely economic loss? Personal Injury or Property Damage?

Negligence - Special Rules of Liability

Answer 91

Only Economic Loss: A plaintiff who only suffers economic loss without any related personal injury or property damage cannot recover in negligence.

Personal Injury or Property Damage: If a plaintiff CAN prove personal injury or property damage, then the plaintiff can recover those damages AND economic damages.

Question 92

What type of plaintiff can recover for a Loss of Consortium?

Negligence - Special Rules of Liability

Answer 92

Loss of Consortium: A family member (generally a spouse) can recover for the loss of consortium or companionship arising from injury to a family member.

Note: The right to consortium only exists while the parties are ALIVE. So between the injury and death, can recover…but not after the injured party’s death.

Question 93

What can a survival action be brought for, and who can bring the action? In GA?

Negligence - Special Rules of Liability

Answer includes GA Distinction

Answer 93

A Survival Action can be brought by a representative of the decedent’s esyaye on behalf of the decedent for claims the decedent would have had at the time of the decedent’s death.
* Claims include damages from personal injury or property damage.

GA Distinction - Survival Action: In GA, if a tortfeasor benefitted from a tort or his tort was the cause of death of a decedent plaintiff, a cause of action will survive the death of the plaintiff

Question 94

What can a Wrongful Death action be brought for, and who can bring the action?

Negligence - Special Rules of Liability

Answer 94

A Wrongful Death action can be broight by the decedent’s spouse or representative to recover losses suffered by the spouse or representative as a result of the decedent’s death.

Damages can include loss of economic support and loss of consortium.

Question 95

What can a Wrongful Life action be brough for, and who can bring the action?

Negligence - Special Rules of Liability

Answer 95

A Wrongful Life action can be brought by a child for the defendant’s negligent failure to properly perfom a contraceptive procedure or diagnose a congenital defect.
* Ct may limit child’s recovery to special damages attributable to the disability.

Question 96

What can a Wrongful Birth action be brought for, and who can bring the action?

Negligence - Special Rules of Liability

Answer 96

A wrongful birth action can be brought by parents for a defendant’s negligent failure to properly perform a contraceptive procedure or diagnose a congenital defect.
* many states permit recovery for medical expenses of labor AND pain and suffering
* may recover damages for the additional medical expense of caring for that child, and in some states, may recover for emotional distress as well.

Question 97

In GA, what can an action for Wrongful Pregnancy or Conception be brought for, and who can bring the action?

Negligence - Special Rules of Liability

Note: GA does not recognize Wrongful Birth and Wrongful Life actions, so this is the rule in GA Essays

Answer 97

In GA, Wrongful birth and Wrongful life actions are not maintanable. GA Recognizes Wrongful Pregnancy or Conception Claims due to the negligent performance of a sterilization or an abortion.
* Wrongful Pregnancy is considered a form of medical malpractice, and entitles the plaintiff to recover only damages incurred during the pregnancy and delivery.

Question 98

What is Vicarious Liability?

Negligence - Vicarious Liability and Immunities

Answer 98

Vicarious Liability means that one person is held liable for another person’s negligence.

Question 99

When Vicarious Liability applies, who is the responsible party?

Negligence - Vicarious Liability and Immunities

Answer 99

Joint and Several Liability: Under joint and several liability, the responsible party can still be held liable for his negligence, BUT the vicariously liable party (ie., employer) is also liable.

Question 100

Negligence - Vicarious Liability and Immunities