Strategies and Tactics

Question 1

What test should I memorize for negligence?

Answer 1

A defendant must fail to exercise such care as a reasonable person in his position would have exercised; his conduct must be a breach of the duty to prevent the foreseeable risk of harm to anyone in the plaintiff’s position, and this breach must cause the plaintiff’s damages.

Question 2

Remember that res ipsa loquitur is merely

Answer 2

one means of proving a negligence claim: It establishes a prima facie case of negligence only where direct evidence of the circumstances of the injury is lacking. If you have direct evidence of how a result came about, res ipsa loquitur will not apply.

Question 3

Three elements of res ipsa loquitor?

Answer 3

In order for res ipsa to establish a prima facie case of negligence, these three elements have to exist: (1) the event causing injury would normally not have occurred in the absence of negligence; (2) the defendant was in exclusive control of the instrumentality that likely caused the injury; and (3) the plaintiff must not have voluntarily contributed to the event causing his injury

Question 4

There’s only one situation where a plaintiff must prove special damages as part of his defamation claim:

Answer 4

when his claim is based on slander and is for a slanderous statement not falling within any of the following four slander per se categories:
1. statements accusing someone of a crime;
2. statements alleging that someone has a foul or loathsome disease;
3. statements adversely reflecting on a person’s fitness to conduct
her business or trade; and
4. statements imputing serious sexual misconduct to someone
(almost always to a woman).

Question 5

The Bar Examiners tend to focus a lot on the requirement of “publication,” i.e., that the defamatory statement be communicated to someone other than the plaintiff.

Answer 5

When you’re reading a question involving an allegedly defamatory statement, you should, therefore, look carefully at the facts to see whether the speaker of the statement spoke in front of someone else. If he didn’t make his statement to anyone other than the person claiming defamation, then there’s no actionable defamation.

Question 6

One aspect of publication that the Bar Examiners like to test is that

Answer 6

strict liability is not permitted; the plaintiff must show that the defendant either intended to communicate the statement to a third person or negligently publicized the statement to third persons.

Question 7

Even if the plaintiff is not a public figure, under prevailing state-law principles defamation is never a strict liability offense!

Answer 7

Instead, the plaintiff will have to prove, at the very least, negligence with respect to the statement’s truth. So if a defendant reasonably (but erroneously) believed the statement was true, he can’t be liable for negligence, and he therefore can’t be liable for defamation, even if the plaintiff is a private figure suing over a private matter.

Question 8

If the plaintiff is a public figure, and the issue is of public interest, the plaintiff has more to prove; in order to prevail, he has to…

Answer 8

show that the defendant knew the statement was false or evidenced a reckless disregard for its truth or falsity; proving negligence wouldn’t be enough. (And even the defendant’s unreasonable failure to investigate won’t be enough to prove reckless disregard: only if the defendant in fact “entertained serious doubts” about the statement’s truth will publication constitute reckless disregard of truth or falsity.)

Question 9

Truth is not a defense to invasion of privacy, but it’s a complete defense to defamation.

Answer 9

Remember that invasion of privacy is not a tort itself, but, rather, is an “umbrella” tort covering four separate, distinct claims: (1) appropriation of plaintiff’s personality for a defendant’s own commercial advantage; (2) intrusion on a plaintiff’s affairs or seclusion; (3) publication of facts that place a plaintiff in a false light; and (4) public disclosure of private facts about a plaintiff. (Here’s a mnemonic: A FLIP [Appropriation, False Light, Intrusion, Private].)
Thus, you could say a statement’s truth is the essence of the damage in most invasion-of-privacy claims, and its falsity is the linchpin of a defamation claim.

Question 10

What you should keep in mind is that there are only three ways a defendant can be strictly liable (i.e., liable without regard to fault or intent):

Answer 10

1. by keeping a wild animal;
2. by conducting an abnormally dangerous activity; or
3. by selling a defective product (strict products liability).

Strict liability can also be imposed by case law or statute, but, if this arises in an MBE question, the question will have to supply the statute or cases, and you’d just have to recognize and apply what you’re given.

Question 11

For wild animal, doesn’t have to be considered dangerous

Answer 11

Just has to be non-domesticated

Question 12

It’s easy to mistake any dangerous activity for an abnormally dangerous one. You may find it helpful to remember that abnormally dangerous activities are ones that…

Answer 12

… cannot be performed with complete safety no matter how much care is taken — that’s why they’re a source of strict liability. Common abnormally dangerous activities include the use of pesticides, the use of explosives, blasting and excavating. (By contrast, transmission of electricity is not generally considered abnormally dangerous.)

Question 13

important things you need to know about strict product liability for the MBE:

Answer 13

1. DEFECT: The product must have been defective;
2. CONTROL: The defective condition must have existed when the
   product left the defendant’s control;
3. CHANGES: The product must not have been expected to undergo significant changes before it got to the user (or, it must not actually
   undergo significant changes);
4. BUSINESS: The seller must be in the business of selling the
   product (that is, he can’t be a casual seller or a user, even one who uses the product while performing a paid service that does not incorporate a transfer of the product);
5. CAUSATION: Damage must result from the defect (a defendant is liable for any harm to persons or property);
6. NO PRIVITY: The defendant’s duty extends to anyone foreseeably endangered by the product (this means there’s no privity requirement).
   If you take the first letter of each of these elements, and add a vowel, you get a mnemonic: CCC BoND (Control; Changes; Causation; Business, No privity; Defect).

Question 14

You must remember that there are actually three different ways in which someone who makes or sells a product can be held liable for injuries the product causes. They are:

Answer 14

(1) strict products liability; (2) breach of warranty; and (3) negligence.

Question 15

he Bar Examiners sometimes throw a warranty answer choice into a question that assumes you’re suing in strict liability. Also,

Answer 15

Watch out! It’s probably a distractor.

Question 16

remember the two types of warranties:

Answer 16

express and implied. Express warranties do show up on the MBE (e.g., a vendor furnishes a sample of the products to be sold; that constitutes an express warranty that the products will match the sample). When an express warranty is present, a commonly tested aspect is that a plaintiff who successfully sues someone for breach of warranty is entitled to the benefit of the bargain.

Question 17

As for negligence, remember that it’s always available as an alternative theory when a product hurts someone; therefore, in products liability questions, you should…

Answer 17

…be aware that negligence might be the correct answer choice. A defendant can’t be liable for product- related negligence, though, unless, at a minimum, the defect was discoverable by reasonable means.

Question 18

One common MBE situation occurs when the purchaser of a defective, unreasonably dangerous product learns about an available safety device but fails to install it.

Answer 18

If the device is cheap, and the danger from not installing the device is great, then the purchaser may be found to be at fault for failing to install the device.

Question 19

An important feature of strict products liability is that the defendant needn’t have created the defect — the defect merely has to be in existence when the product leaves his control.

Answer 19

Thus, a retailer can be liable for a manufacturer-created defect, even if the retailer didn’t know about it and couldn’t have discovered it. This seems counterintuitive until you remember that the retailer won’t necessarily be ultimately liable; he can seek indemnity from his supplier, who can seek indemnity from his supplier, and so on, until the one originally responsible for creating the defect is held liable. The retailer is, nevertheless, a potential defendant.

Question 20

Under negligent product liability, as opposed to strict liability, the defendant himself must have failed to exercise due care in order to be held liable — he can’t be held liable for the negligence of those preceding him in the distribution chain.

Answer 20

Be careful, though. A defendant’s negligence can take a variety of forms. Watch out for any behavior that is characterized as unreasonable. Thus, if defendant didn’t inspect and a reasonable person would have, or if he did inspect but didn’t find a defect when a reasonable inspection would have discovered it, he’ll be liable, but only because his own conduct has been unreasonable.

Question 21

Questions asking for a “best argument,” look at these questions this way:

Answer 21

Only one of the answer choices will provide a successful claim or defense. The other three will all be flawed in some way, because they either don’t apply to the facts or don’t correctly apply the law.

Question 22

For Questions asking what the plaintiff will need to prove and in which the claim is identified (e.g., nuisance, defamation)…

Answer 22

In this kind of question, only one answer choice will supply the correct level of proof. The others will overstate it or understate it. An answer choice overstates the proof required if, for instance, it overstates the level of fault that the plaintiff must show. An answer choice understates the proof required if, for instance, it’s not specific enough, or it’s not relevant. Whenever a claim is mentioned, think of the elements that claim requires, as well as relevant defenses, and keep those in mind as you analyze each choice.

Question 23

How to ID claims when a question doesn’t tell you what the claim is

Answer 23

three important categories that are easy to define:
1. intentional tort; 2. negligence; and 3. strict liability.
If you apply the rules on strict liability that we gave you in the “Study Strategies” section, you can easily identify where strict liability applies. Intentional torts are inherently simple to identify. That will leave you in most cases with a negligence claim.

You’ll get additional help in identifying the claim if you look at the reasoning of the answer choices, because at least one will contain a material element of the correct claim. Language such as “reason to know” in answer choices is the language of negligence, as that’s determined objectively. Also, in the question itself, the facts will suggest what the plaintiff’s claim must be. If there’s no intent stated or indicated, you won’t base a claim on an intentional tort. If there’s no basis for strict liability, you wouldn’t claim it. That leaves negligence.

Question 24

Where “if” is the modifier in an answer choice, analyze these answer choices this way:

Answer 24

1. The reasoning of the answer choice must be plausible on the facts, i.e., there can’t be anything in the facts suggesting that an alternative is true.
2. The answer choice must resolve a significant issue.
3. The result must be consistent with the reasoning.

Question 25

Where “because” is the modifier in an answer choice…

Answer 25

If the corresponding question asks who will prevail, ask yourself: “Would these facts be necessary to make the defendant liable?”

Question 26

Where “unless” is the modifier in an answer choice.

Answer 26

If an answer choice states that “The plaintiff will not prevail unless X . . . ,” then there must be no other way than X for the plaintiff to succeed. In other words, if X doesn’t exist, the defendant isn’t liable.
This reasoning need only be plausible on the facts.

Question 27

Negligence questions: a shortcut.

Answer 27

Look at the defendant’s conduct and see if it was reasonable. If it was, defendant cannot be negligent, because negligence requires unreasonable behavior.

Question 28

Handling causation issues…

Answer 28

The most important thing to remember is not to be intimidated by multiple causes. It’s easy to be overwhelmed by fact patterns where there are multiple causes of a plaintiff’s damage. Remember:
THERE CAN BE MORE THAN ONE CAUSE IN FACT.
The fact that someone other than the defendant contributed to a plaintiff’s damages, doesn’t, in itself, relieve the defendant of liability if the defendant’s conduct was a substantial factor in causing a plaintiff’s damages.

Question 29

Handling causation issues…

Answer 29

INTERVENING CAUSES WILL SUPERSEDE ONLY IF THEY WERE UNFORESEEABLE.

Ask yourself this: Were the plaintiff’s injuries within the risk created by the defendant’s act? Alternatively, if the defendant was negligent, what were the risks his negligence created? This is the heart of proximate cause. Remember that intervening causes relieve the original tortfeasor of liability only if the results of the intervening causes are unforeseeable. Think of intervening causes as insulation, and decide whether they create enough of an insulating barrier to justify the plaintiff’s not recovering.

Question 30

Handling causation issues…

Answer 30

DON’T BE THROWN BY THE FACT THAT THE INTERVENING ACTOR MAY ALSO BE LIABLE.
The negligence of intervening actors won’t relieve the original tortfeasor of liability unless the results of that intervening negligence are unforeseeable. Under joint-and-several-liability (which you’re told to assume by default), if the negligent acts of the original tortfeasor and of some later tortfeasor combine to produce an individual harm, the plaintiff can pick which tortfeasor to sue, and can recover his entire damages from that person. The mere fact that the plaintiff could have sued someone else as well doesn’t exonerate the defendant chosen for suit (whose remedy is a contribution or indemnity claim against the missing tortfeasor).

Question 31

Handling causation issues…

Answer 31

REMEMBER THAT THERE CAN’T BE PROXIMATE CAUSE WITHOUT CAUSE IN FACT.
If conduct is the proximate cause of damage, it must be a cause in fact as well. If there aren’t any intervening acts, proximate cause must exist (as long as the defendant was negligent, of course). In fact, the only time you should be concerned with proximate cause is when remote possibilities are involved.

Question 32

When we say “pure comparative negligence” applies, we mean…

Answer 32

…that the plaintiff’s recovery will be reduced “in proportion to the share of responsibility the factfinder assigns to the plaintiff.”

Question 33

When we say that there is “joint and several liability,” we
mean…

Answer 33

…that “the injured person may sue for and recover the full amount of recoverable damages from any jointly and severally liable person.”