MBETorts

Question 1

IIED: Damages

Answer 1

P must prove distress beyond what rsnble person could endure; if P hypersensitive, liability only if D knew

Question 2

False Imprisonment as Tort

Answer 2

1. D intentionally confines another
2. w/in fixed boundaries w/ no rsnbl means of escape
3. V aware or actually harmed

Question 3

Privilege of Arrest as Defense to Intentional Tort

Answer 3

• Private citizen use force if felony in fact committed + rsnbl grounds to suspect
• PO if rsnbly believe felony committed + rsnbly believes D perpetrated
• PO misdemeanor if being committed or about to be in presence; private cit only if also breach of peace

Question 4

Trespass to Chattel

Answer 4

• Intentional interference w/ right of possession that causes actual harm or deprivation of use for substantial time
• Only need to show D had intent to do interfering act, not intent to dispossess
• Remedy = diminution in value or cost of repair

Question 5

Abatement of Nuisance

Answer 5

Person may enter another’s land to abate private nuisance w/ rsnble force after giving notice (liable for any damage beyond necessary to abate)

If public, must go to AG unless unique harm

Question 6

Negligence Actions: Circs in which D Has Affirmative Duty to Act

Answer 6

1. D voluntarily aids or rescues
2. D places another in peril has duty to prevent further harm
3. D w/ actual ability + authority to control another (parent, employer) must exercise rsble control
4. Unique relationship, such as common carrier, had duty to protect, aid, or assist

Question 7

Exception to Physician’s Duty to Obtain Informed Consent

Answer 7

1. risk commonly known
2. patient unconscious/emergency
3. patient waives/refuses
4. incompetent (rsnble attempt to get from guardian)
5. detrimental to patient

Question 8

Restatement Factors to Determine Ultra-hazardous Activity

Answer 8

(i) high degree of risk of harm
(ii) extent of likely harm
(iii) inability to eliminate risk by exercise of due care
(iv) rarity of activity
(v) inappropriateness activity to place carried on
(vi) extent to which value to community outweighed by dangerousness

Question 9

Landowner Tort Liability to Off-Premise Victims (ie: passerby and neighbors)

Answer 9

No liability for natural conditions, except trees in urban areas

Must prevent unreasonable harm from artificial conditions

Question 10

Actual Causation in Tort Cases When But For Won’t Work

Answer 10

• Multiple + merged causes, breach of each “substantial factor”
• Alternative causation: burden shifts to individual Ds (only if all Ds were tortious + all joined)
• Concert of action

Question 11

Types of Damages Available in Negligence Actions Generally

Answer 11

• No nominal damages, attys fees, or interest
• If physical injury, can add emotional distress
• Economic loss only if related PI or prop damage
• Punitive only if D acted recklessly or w/ malice

Question 12

Torts Committed by Independent K’ers: Non-delegable duties

Answer 12

1. inherently dangerous activities
2. activities that affect public
3. Storekeeper or operator of other premises open to public

Question 13

Contribution in Tort Claims

Answer 13

Generally not available for intentional torts

Question 14

Assumption of Risk - Exculpatory Clauses in Ks not enforced where…

Answer 14

1. disclaiming liability for recklessness or gross negligence
2. gross disparity of bargaining power
3. party offers services of great importance to public that are practical necessity for at least some members (medical)
4. Against public policy (common carriers, innkeepers + employers)

Question 15

Strict Products Liability: Elements

Answer 15

1. Product defective (manufacture, design, of failure to warn)
2. defect existed at time left D’s control
3. P used product in intended/rsnbly foreseeable way

Question 16

Strict Products Liability: Design Defect (Two Tests)

Answer 16

1. Consumer Expectation Test: product includes condition not contemplated by ordinary customer that is unreasonably dangerous
2. Risk-utility test: risk posed by product outweigh benefits + economically feasible, rsnble alternative design was available

Question 17

Strict Products Liability: Failure to Warn

Answer 17

Foreseeable risks of harm, not obvious to ordinary user of product, that could have been reduced/avoided by providing reasonable instructions or warning

Learned Intermediary Rule: manufacturer fulfills duty to warn by informing prescribing physician (dn apply where likely to be dispensed w/out personal intervention of dr)

Question 18

Implied Warranty of Merchantability

Answer 18

Product generally acceptable and reasonably fit for ordinary purposes for which being sold

Seller must be merchant w/r/t kind of goods at issue

Question 19

Implied Warranty of Fitness for Particular Purpose

Answer 19

Only if seller knows the particular purpose for which product being purchased and buyer relies on seller’s skill or judgment in supplying product

Question 20

Libel

Answer 20

Libel: written/printed/ recorded in permanent form (TV/radio + email)

Need only prove general damages presumed to flow from damage to reputation

Question 21

Slander

Answer 21

If not per se, must show special damages: 3d party heard and acted adversely to P; typically econ loss (loss of biz), but could be social

If per se/special damages, P also gets general damages

Question 22

Defense to Defamation: Qualified Privileges

Answer 22

1. interest of D (ie: defending own reputation)
2. interest of recipient or other 3d p
3. affecting impt public interest
   - priv lost if abused (ie: D acted w/ malice); D burden to show priv, burden shifts to P to show abused

Question 23

Public Disclosure of Private Facts

Answer 23

1. Communication to public at large of matter concerning private life of another that would be
2. highly offensive to rsnble person + not of legitimate concern to public

Question 24

Gov’t Official Given Unfettered Discretion to Restrict Speech

Answer 24

Void on face; speaker need not apply for permit/be punished prior to challenging