Review of MBE subjects -- torts

Question 1

What level of scienter is required for the “publication” requirement in defamation?

Answer 1

Negligence is enough.

Question 2

Absolute privileges for defamation are

Answer 2

1. anything said only to spouse can’t be subject of claim

2. anything said in court or filings can’t be subject of claim.

Question 3

Intrusion is

Answer 3

the tort of invading a plaintiff’s seclusion in a way that would be highly offensive to the average person. Applies only if you have a reasonable expectation of privacy where you are.

Question 4

False light invasion of privacy is

Answer 4

widespread dissemination of falsehood about P that would be highly offensive to the average person.

tort of “false gossip”

Question 5

Are there defenses to intentional misrepresentation?

Answer 5

NO.

Question 6

Negligent misrepresentation applies only in

Answer 6

the business context.

Question 7

Elements of interference with business relations

Answer 7

1. existence of a K or business expectancy
2. knowledge by D of that K or expectancy
3. intentional interference inducing breach
4. damages

**in MA, must prove interference was improper in motive or means.

Question 8

Customizations of the reasonable person standard

Answer 8

operate as a ratchet: only one way (up but not down – unless kids)

Question 9

Children under ____ owe no duty of care.

Answer 9

5

Question 10

A person is liable for damage caused by attractive nuisance if

Answer 10

1. he knew/should’ve known kids frequent the area
2. the expense of fixing the problem was slight compared to the risk
3. dangerous condition on the land of which landowner should have known, AND
4. child was unable to appreciate the risk.

**Note that it doesn’t matter whether kid was lured onto land BY the nuisance.

Question 11

Off-premises liability: Landowners have a duty to protect people off the premises from

Answer 11

unreasonably dangerous artificial conditions or structures abutting adjacent land.

In urban spaces, owner or occupier is liable for damages caused off premises by trees on the premises (falling branches).

Question 12

foreseeability: intervening medical malpractice

Answer 12

FORESEEABLE.

Question 13

foreseeability: intervening negligent rescue

Answer 13

FORESEEABLE

Question 14

foreseeability: intervening protection or reaction force

Answer 14

FORESEEABLE

Question 15

foreseeability: subsequent disease or injury from weakened state after first injury

Answer 15

FORESEEABLE

Question 16

In negligence cases, damages will

Answer 16

not be presumed.

Question 17

In comparative negligence jurisdictions, express assumption of the risk is

Answer 17

still a complete defense.

Question 18

In comparative negligence jurisdictions, P’s negligence is _______ when D’s conduct was willful or wanton, and is _______ when D’s conduct was intentionally tortious.

Answer 18

taken into account; not taken into account (i.e. no defense)

Question 19

Assumption of risk is NOT a defense to

Answer 19

intentional torts, but it is a defense to wanton or willful misconduct.

Question 20

Last clear chance doctrine is

Answer 20

plaintiff’s rebuttal to a charge of contributory negligence. If defendant had the last clear chance to avoid the accident, plaintiff can win even if she was contributorily negligent.

Question 21

Contributory negligence is NOT a defense to

Answer 21

wanton or willful misconduct or intentional torts.

Question 22

Damages ARE/ARE NOT reduced when P receives benefits from another source (like insurance)?

Answer 22

NOT reduced.

Question 23

Test for abnormally dangerous activities that get strict liability is activities that

Answer 23

create serious risk of harm even when reasonable care is exercised by all, AND
activity is not a matter of common usage in the community.

Question 24

A prima facie case for strict liability is made out by proving:

Answer 24

1. absolute duty to make safe
2. causation (actual & foreseeable)
3. damage to person or property

Question 25

Liability for animals:

Answer 25

1. strict if they are wild
2. not strict if they are domesticated, unless owner knows of their dangerous propensity – but normally dangerous acts by domesticated animals don’t qualify as “dangerous propensity” (e.g. honeybees, bulls)
3. Strict liability for animals is NOT typically available for trespassers – owner must have been negligent.
4. GUARD DOGS – may be liable even to trespassers under an intentional tort theory, but not if the trespasser knew you had a vicious dog and entered anyway.

Question 26

Where an abnormally dangerous activity is involved, a plaintiff’s own negligence

Answer 26

may reduce recovery. (In contributory negligence states, recovery won’t be barred just because P failed to discover the problem or misused product in a reasonably foreseeable way, but assumption of risk is a defense.)

Question 27

For strict products liability, must have these four elements:

Answer 27

1. seller is a commercial supplier
2. product must be defective (design, manufacturing, warning)
3. product must NOT have been altered since leaving merchant’s hands
4. plaintiff must be injured while making a foreseeable use of the product.

Question 28

A dealer of products who buys from a reputable manufacturer can avoid negligence liability for defects of the product if she

Answer 28

makes a cursory inspection.

Question 29

Disclaimer of liability is

Answer 29

never a defense in personal injury or property damage cases based on negligence or strict liability.

Question 30

The protections of an implied warranty on a good extend to

Answer 30

buyer’s family, household, and guests who suffer personal injury.

Question 31

For warranty theories, you need not prove ______ and you can recover ______ damages.

Answer 31

fault; purely economic (in addition to property damages and personal injury)

Question 32

The protections of an express warranty on a good extend to

Answer 32

anyone – consumers, users, bystanders. Warranty must have been basis of bargain if buyer sues, but if bystander sues, it’s fine as long as someone relied on the warranty.

Question 33

Sellers are liable for misrepresentation of fact when these elements are met:

Answer 33

1. statement was of a material fact concerning quality or uses of goods (not “mere puffery”).
2. seller intended to induce reliance by the buyer in a particular transaction.

Question 34

In nuisance cases, self-help is

Answer 34

permitted after notice to defendant and D’s refusal to act, but only necessary force may be used.

Question 35

Buying land next to an already existing nuisance

Answer 35

does not limit your ability to recover.

Question 36

Family car doctrine:

Answer 36

a person is liable for torts of immediate family or household members who drive with the owner’s permission.