Strategies and Tactics Exam Review

Question 1

In a suit by a consumer against the manufacturer, the plaintiff will be barred from recovering because

Answer 1

a manufacturer has no obligation to warn against obvious dangers. but the seller or manufacturer of a product is generally not liable for failing to warn against a danger that should be obvious to foreseeable users of the product.

That’s because “warning of an obvious or generally known risk in most instances will not provide an effective additional measure of safety.

Question 2

In a suit based on strict product liability, the manufacturer’s failure to warn of a danger can itself

Answer 2

make the product defective, and trigger strict liability for injuries caused by the defect. R3d Torts.

Question 3

What are the requirements of assault

Answer 3

Assault in a tort claim requires that the plaintiff become aware of the defendant’s attempt to inflict a harmful or offensive contact before the attempt has been terminated

The defendant is liable to the plaintiff for assault if (a) the defendant acts intending to cause a harmful or offensive contract with the person of the plaintiff or a third person, or an immediate apprehension of such a contact, and (b) the plaintiff is thereby put in such imminent apprehension. R2d Torts, 21.

Question 4

When does a plaintiff’s claim for assault fail

Answer 4

If the defendant intends to cause a harmful or offensive contact with the plaintiff, the defendant wont be liable for assault if the plaintiff learns of the threatened contact “after” the threat has “passed”

An attempt to inflict a harmful or offensive contact or to cause an apprehension of such contact does not make the actor liable for an assault if the other does not become aware of the attempt before it is terminated.

Question 5

Where the defendant’s negligence places one person at physical risk, what is the liability of the defendant to other parties

Answer 5

it is quite foreseeable that another person might come to the rescue, and the rescuer might be injured. So it is reasonably foreseeable that negligence by a manufacturer might lead to physical harm to a rescuer. when this happens, the negligence by the defendant is deemed to be the proximate cause of the injuries to the rescuer.

Question 6

An actor, whose tortious conduct puts the the actor or another at risk

Answer 6

is subject to liability to a third person who is injured while attempting to come to the aid of the actor or the other imperiled person.

In the leading case on the subject, in which Judge Cardozo famously wrote, “Danger invites rescue.” The cry of distress is the summons of relief.

It is foreseeable that a negligent design will cause a situation where a passerby might try to rescue inhabitants of rolled-over car and be injured during that attempt

Question 7

In a nuisance claim for interference with the landowner’s use and enjoyment of his property, the interference has to be

Answer 7

substantial and unreasonable. One who intentionally causes a substantial and unreasonable interference with another person’s use and enjoyment of the latter’s property without a valid defenses is liable for “private nuisance.”

Question 8

To prevail on a “private nuisance” claim, the landowner will have to make to major showings, which are:

Answer 8

(1) that the interference with his use and enjoyment of his property was “substantial and unreasonable”; and
(2) that the interference was “intentional” (unless he can show that the interference was negligent, reckless, or involved abnormally dangerous activity).

The impact on the landowner will be classified as “unreasonable” if the harm to him is “greater then he ought to be required to bear under the circumstances.”

The plaintiff in a private nuisance action must show that the defendant’s interference with the plaintiff’s use and enjoyment was either (a) intentional; (b) negligent; (c) reckless; or (d) stemming from an abnormally dangerous activity

Question 9

Under what circumstances will a plaintiff’s claim fail for a private nuisance action

Answer 9

Outside of the abnormally-dangerous-activity scenario, there is no nuisance liability for “unintentional non-negligent interference” with another’s use and enjoyment of land.

Once a defendant becomes aware of the negligent conduct, but continues to conduct themselves in the same manner, then the defendant’s actions become “intentional.”

Rather, it is enough that the defendant knows that the inference is either occurring or substantially certain to occur in the future, as a result of the defendant’s conduct.

Question 10

A statutory violation requires that you determine if the manner in which the plaintiff was harmed is

Answer 10

a result of the defendant’s violation of a statute that was meant to protect against this type of occurrence/injury to the plaintiff, and the plaintiff (accident victim) was within the “class” of persons the statute is designed to protect.

Question 11

A statutory violation will cause the court to

Answer 11

apply the doctrine of negligence per se. under the doctrine of negligence per se, if the defendant, without excuse, violated a criminal statute that was designed to protect against the type of accident that occurred, then the violation automatically constitutes negligence.

Question 12

what language on the MBE will give the candidate NOTICE that a negligence per se question is being asked?

Answer 12

The phrase “violation of a statute that was meant to protect against this type of occurrence” is the sort of formulation that should immediately cause you to be thinking about negligence per se.

Where an MBE fact pattern turns on a doctrine with an unusual and evocative name, examiners typically go out of their way to avoid explicitly mentioning that doctrine (res ipsa loquitor, negligence per se)

Question 13

If a question holds that the jurisdiction generally follows the rule that a person with a mental deficiency is held to the standard of a reasonable person, in a negligence action, what defenses may be available to the defendant

Answer 13

1- The plaintiff was a professional caregiver, who was aware of the defendant’s condition
2- The plaintiff was trained to care for patients with the mental deficiency
3- At the time of the incident, the defendant was delusional (thought she was being attacked)

This type of question focuses on the plaintiff’s “assumption of risk.”

Question 14

What is the assumption of risk doctrine

Answer 14

A plaintiff who voluntarily assumes the risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such.

Question 15

The assumption of risk doctrine is either

Answer 15

1- Implied, or

2- Expressed

Question 16

When is the implied assumption of risk applied to the plaintiff

Answer 16

Implied assumption of risk applies where a plaintiff (1) “fully understands a risk of harm caused by the defendant’s conduct, and (2) voluntarily chooses to encounter risk, “under circumstances that manifest the plaintiff’s willingness to accept that risk.

Question 17

A property owner is allowed to use what type of force to prevent or end a trespasser’s intrusion on his land

Answer 17

A property owner is privileged to use reasonable force to prevent or end a trespasser’s intrusion on his land. But a landowner exercising the privilege to defend his property is not permitted to use a level of force that is “intended or likely to cause bodily harm in excess of that which the owner correctly or reasonably believes to be necessary to prevent or terminate the other’s intrusion.

Question 18

What liability does a landowner have when he uses excessive force to prevent or end a trespasser’s intrusion on his land

Answer 18

The landowner is liable for “so much of the force as is excessive.” Consequently, the landowner will be liable for injuries which would have not occurred had he used appropriate level of force

Question 19

The assumption of risk can be a defense to what type of action brought by the plaintiff

Answer 19

The assumption of risk can be a defense to a “strict liability action” because the plaintiff assumed the risk of an accident like the one that occurred.

R2d 523: The plaintiff’s assumption of the risk of harm from an abnormally-dangerous-activity bars his recovery for the harm.

Question 20

In a strict products liability claim, a defendant that did not manufacture the or sell dangerous item would argue

Answer 20

The defense that defendant did not manufacturer or sell the dangerous item, and is therefore, not liable

Question 21

On the MBE make sure you distinguish between the different types of strict liability, such as between

Answer 21

1- Abnormally dangerous activity, and 2- strict products liability, which includes liability ONLY to the manufacturer or seller of the product

One of the requirements for classifying an activity as abnormally dangerous is that the activity cannot be carried out with perfect safety no matter how carefully the defendant behaved. So by definition, the fact that the defendant used state-of-art methods cannot be a defense

Question 22

When a person negligently causes an injury to another, the defendant is also liable for

Answer 22

The defendant is also liable for a second injury to the plaintiff, in which the second injury is a normal consequence of the initial injury.

So if the second injury is a “normal consequence” of the first injury, according to the R2d 460 “normal consequence test.”

The negligent actor is also liable for harm sustained in a subsequent accident which would not have occurred had the other’s condition not been impaired, and which is a normal consequence of such impairment.

Question 23

The saying that the defendant “takes the victim as he finds him” means that

Answer 23

a negligent defendant is responsible for the full extent of the plaintiff’s initial injuries, even injuries that stem from the plaintiff’s unusual “pre-existing” vulnerability. That is, “takes his victim as he finds him” refers to the so-called “thin skull” type of problem.

Question 24

What is the separability of injuries (also known as the “divisibility” of injuries

Answer 24

Is a doctrine that becomes signifiant ONLY when there are not only multiple injuries, but also multiple defendant–if the injuries can be allocated among the multiple defendant (i.e., the injuries are separable), then each defendant is liable only for those injuries that can be specifically attributed to that defendant’s fault.

Question 25

In a scenario on the MBE, the defendant who causes the first injury will be liable for the plaintiff’s second injury when

Answer 25

no matter how unforeseeable that second injury might have been as of the time of the defendant’s negligence, so long as we can say after the fact that the second injury was a “normal consequence” of the first injury

Question 26

What type of force is a landowner privileged to use to prevent an intrusion on his land

Answer 26

A landowner can be privileged to use even deadly force to prevent an intrusion on his land. However, such a use of deadly force is privileged “if, but only if, the owner reasonably believes that the intruder, unless expelled or excluded, is likely to cause death or serious bodily harm to the owner or to a third person whom the owner is privileged to protect.

Question 27

What type of belief is not enough for a landowner to use deadly force or excessive force

Answer 27

if a landowner “genuinely” believes the intruder had a gun and might well use it, is not enough to permit the landowner to use deadly force: so the landowner’s belief has to be “reasonable,” not just genuine.

Question 28

Where does the “no retreat rule” apply

Answer 28

The no-retreat rule only applies in a person’s dwelling, which does not include the landowner’s property (general land).

Question 29

What is the “stand your ground” rule

Answer 29

Under which the defendant may sometimes defend himself from harm, even by the use of deadly force, and even if he could avoid injury by retreating.

Question 30

If the force by the defendant is excessive, the defendant would have to convince the court that

Answer 30

The landowner could prevail if he could convince the court that no lesser amount of force would likely have sufficed.

Question 31

Under what doctrine does a person have the right to enter another’s land

Answer 31

A person has the privilege of “private necessity” to enter another’s land, if that entry is or reasonably appears to be necessary to prevent serious harm to the person or his chattels.

If the person entering another’s land under the private necessity doctrine, damages the land, the person will be liable for the damage, that’s why the private necessity privilege is called an “incomplete privilege.”

Question 32

When a person enters another’s land under the “private necessity” privilege, what is the duty of the landowner

Answer 32

The landowner is under a duty to allow the entry to continue until the danger had passed.

Under the doctrine of private necessity, the inclusion or exclusion of “no trespassing” signs is irrelevant.

Question 33

What is the duty owed by a possessor of land open to the public

Answer 33

The duty to keep the premises reasonably safe, and this duty may not be delegated to an independent contractor.

A possessor of land owes such a duty of care, that duty cannot be delegated to an independent contractor who will do repairs, at least if the possessor (landowner) retains possession of the premises during the repair activity

Question 34

In a defamation claim brought by political candidate must prove that the defendant

Answer 34

Either knew the statement was false or had serious doubts about whether it was true.

The Rule of Law: to require that the defendant acted either “with knowledge that the statement was false or with reckless disregard of whether it was false or not.”

The Supreme Court has held that the First Amendment requires that a public figure, in order to recover for defamation, must prove that the defendant acted with more then mere negligence with regard to the truth or falsity of the defamation statement. So the plaintiff must show that the defendant made his statement with “actual malice.”

Question 35

How is “recklessness” defined for purposes of defamation claims brought by a public figure

Answer 35

The Supreme Court said, for recklessness, “there must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.”

The Court also included, that “reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing.”

Question 36

what type of statement MAY NOT be the basis of a defamation claim

Answer 36

A pure statement of opinion may not be the basis for a defamation claim. Rather, the First Amendment requires that only statements that purport to be statements of fact may be made actionable.

Question 37

A private claim for defamation brought by a non-public figure requires that

Answer 37

(1) required to prove that the accusation was false AND (2) that it was injurious to his reputation.

Question 38

The instructions on the MBE tell you to assume that “joint and several liability, with pure comparative negligence, is the relevant rule unless otherwise indicated, so the approach to tort questions means that

Answer 38

if the fact pattern does not indicate otherwise, the key is to figure out how to apply the facts given in the question to (1) joint and several liability; and (2) pure comparative negligence

Question 39

What is comparative negligence

Answer 39

is a partial legal defense that reduces the amount of damages that a plaintiff can recover in a negligence-based claim based upon the degree to which the plaintiff’s own negligence contributed to cause the injury. When the defense is asserted, the fact-finder, usually a jury, must decide the degree to which the plaintiff’s negligence versus the combined negligence of all other relevant actors contributed to cause the plaintiff’s damages. It is a modification of the doctrine of contributory negligence which disallows any recovery by a plaintiff whose negligence contributed, even minimally, to causing the damages.

Question 40

What is contributory negligence

Answer 40

Common Law Doctrine which disallows any recovery by a plaintiff whose negligence contributed, even minimally, to causing the damages.

Question 41

What is joint and several liability

Answer 41

Under joint and several liability or all sums, a claimant may pursue an obligation against any one party as if they were jointly liable and it becomes the responsibility of the defendants to sort out their respective proportions of liability and payment. This means that if the claimant pursues one defendant and receives payment, that defendant must then pursue the other obligors for a contribution to their share of the liability.
Joint and several liability is most relevant in tort claims, whereby a plaintiff may recover all the damages from any of the defendants regardless of their individual share of the liability. The rule is often applied in negligence cases, though it is sometimes invoked in other areas of law.

Question 42

When the MBE says pure comparative negligence applies, it means that

Answer 42

The plaintiff’s recovery will be reduced “in proportion to the share of responsibility the fact finder assigns to the plaintiff.

Question 43

When the MBE says joint and several liability, it means

Answer 43

that “the injured person (plaintiff) may sue for and recover the full amount of recoverable damage from any jointly and severally liable person.

Question 44

When you have a jurisdiction that applies “joint and several liability” you must determine that the

Answer 44

conduct of two or more persons is a legal cause [proximate cause] of an indivisible injury, then each person is joint and severally liable for the recoverable damages caused by the tortious conduct

Question 45

What effect does the doctrine of res ipsa loquitor have on the burden of proof

Answer 45

If successfully established, the burden of proof shifts from the plaintiff to the defendant. When there are multiple defendants, the res ipas loquitor doctrine allows the defendant’s to come forward with an initial explanation of who was negligent.

Question 46

Under the doctrine of res ipsa loquitor, the jury may

Answer 46

“infer that the defendant has been negligent when the accident causing the plaintiff’s harm is a type of accident that ordinarily happens as a result of the negligence of a class of actors of which the defendant is the relevant member.

A reasonable jury could infer that this type of accident that does not ordinarily happen except as a result of negligence by someone among the defendants

Question 47

Acting in concert refers to

Answer 47

“jointly engaging” in the negligent activity, so you need to show (evidence) that two or more defendants jointly acted negligently, and not the negligent conduct of a single actor (defendant).

Question 48

What is “conversion”

Answer 48

is “an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control the chattel that the actor may justly be required to pay the other (actor-owner) the full value of the chattel

Question 49

When does one form of conversion occur

Answer 49

When a person is initially legitimately in possession of the chattel, but then unjustifiably refuses to return it upon rightful demand by the owner.

Question 50

What time period is generally permitted for a person to return a chattel, in which the person was lawfully in possession of

Answer 50

A brief delay in return–while, say the person makes reasonable efforts to figure out whether the chattel should be returned, which may be sufficiently unserious that it would have not constituted a tort or a mere trespass to chattels. But a delay of two full months, and the chattel declining in value during the delay, taken together are serious enough that it is fair to treat the delay as a “forced sale (i.e. conversion).

Question 51

What is a forced sale related to conversion

Answer 51

it is the point that the convertor (person that did not return the chattel) as having “bought” the chattel for its market value as of the moment the true owner requested the chattel back

Question 52

When can conversion occur?

Answer 52

1- Conversion sometimes occurs when the defendant initially and wrongfully takes dominion over a chattel. But the tort can also occur when the defendant initially comes into rightful possession of a chattel, and later wrongfully refuses to surrender it. So the fact that possession was originally lawful does not mean or give a defendant a defense for having later refused to return the certificate, when it lawfully should have been returned

Question 53

At what point does the tort of conversion occur, when the defendant was originally lawfully in possession of the plaintiff’s chattel

Answer 53

The tort of conversion occurs at the moment the plaintiff first rightfully demanded the return of the chattel. At the moment of demand and refusal becomes the “forced sale” of the time–which is the essence of conversion–occurred. Therefore, that’s the moment as of which the market value of the certificate is to be computed.

Question 54

A company or rental agency could only be liable for (what kind of harm)

Answer 54

harm proximately caused by its negligence, and failure to check for (a bomb) or something whose presence was not reasonably foreseeable, and is not negligent

Question 55

An agency can be liable ONLY if the plaintiff proves two things:

Answer 55

(1) that the agency was negligent; and (2) that the negligence was a proximate cause of the plaintiff’s injuries.

An agency has no duty to conduct an inspection, which is not custom in the industry, or that the agency does not have notice of an issue outside of industry norms.

Additionally, an Agency that does not intentionally conduct abnormally dangerous activities, would not be liable for an abnormal dangerous activity related to the Agency’s business

Question 56

Under the theory of liability, in order to determine if someone may or does have a valid claim, it is up to the candidate to find the answer choice that

Answer 56

Establishes how the plaintiff would satisfy his burden of proof that the error by the defendant was “the cause in fact.” So it is up the candidate to figure out (the best answer choice), what theory of liability there could be to recovery.

Although there is some possibility of recovery under a strict product liability theory, the much more straightforward theory on these facts is one based on negligence.

Question 57

Under the theory of res ipsa loquitur (“the thing speaks for itself”)

Answer 57

permits the plaintiff to create an inference of the defendant’s negligence without any direct evidence showing negligence.

Question 58

What are the four requirements for res ipsa loquitur:

Answer 58

(1) there must be no direct evidence of how the defendant behaved in connection with the event; (2) the event must be of a kind which originally does not occur except through the negligence (or other fault) of someone; (3) the instrument that caused the injury must have been, at the relevant time, in the exclusive control of the defendant; and (4) injury must not have been due to the plaintiff’s own actions.

Question 59

The purpose of res ipsa loquitor does not require

Answer 59

a plaintiff to show evidence, the purpose of the doctrine is to eliminate the need for a plaintiff to provide direct evidence or why or how the accident or injury occurred.

Question 60

The doctrine of res ipsa loquitor does not require the plaintiff to

Answer 60

negate the possibility that the defendant might not have been negligent. The plaintiff show that the event was a kind that “ordinarily” does not occur except through the fault of someone. But the plaintiff is not required to show that the vent couldnt possible have been due to a cause not involving the defendant’s fault.

Question 61

Common carriers (including airlines) are required to

Answer 61

exercise a very high degree of care toward their passengers and guests, which is to say they are liable for even slight negligence, but they do not have strict liability

Question 62

An action in tort for negligence has four elements

Answer 62

(1) the existence of a duty on the part of the defendant to conform to a specific standard of conduct for the protection of the plaintiff against an unreasonable risk of injury; (2) breach of that duty by the defendant; (3) proof that the breach was the actual and proximate cause of the plaintiff’s injury; and (4) damage to the plaintiff’s person or propety.

Question 63

The mere fact that there was some other at that the defendant could have taken–that would have prevented the injury, in a negligence claim, is

Answer 63

insufficient to make the defendant liable, that is other acts taken by the defendant, may have been enough to make the defendant’s conduct non-negligent. Because the defendant probably had already met the standard of reasonable care, he would not be liable. For the victim to make a case in negligence against the defendant for the harm she suffered, she would have to show that he did not exercise reasonable care to protect her against injury.

Question 64

When you are given a fact pattern in which the defendant has taken several reasonable steps to protect the interests of a plaintiff, and there is one step not taken, or other steps available do not ignore

Answer 64

Do not ignore the possibilities that the defendant’s other protections and precautions failed to meet the overall standard of due care.

Question 65

The storage and sale of firearms might be enough to make the seller liable under ordinary negligence principles, but not under the theory of

Answer 65

The sale of firearms is NOT an abnormally dangerous activities. One of the major factors in determining whether something is an abnormally dangerous activity is an “inability to eliminate the risk by the exercise of reasonable care.” Locking up firearms securely is a way to eliminate at least the risk of theft and subsequent use in crime.

Question 66

One of the major factors in determining whether something is an abnormally dangerous activity is an

Answer 66

“inability to eliminate the risk by the exercise of reasonable care.”

Question 67

Strict liability claims, as usually imposed, applies only against one who is

Answer 67

“engaged in the business of selling” the type of product involved. . A court almost certainly conclude that a creditor who reposed and item and sold it at auction is not “engaged in the business of selling” the particular chattel.

Question 68

In a strict liability claim, the defect must be

Answer 68

the cause of the claim

Question 69

When a plaintiff brings a strict liability suit, the fact that the defendant did or did not behave negligently plays what role in the suit

Answer 69

The defendant’s failure to act or negligence, but it has NO bearing on whether there is strict liability.

Question 70

A plaintiff’s contributory negligence would not bar what type of tort suit

Answer 70

it would not bar a plaintiff from bringing a claim for strict liability

Question 71

A private nuisance claim is based on

Answer 71

an unreasonable interference with another individual’s use or enjoyment of his property. Since the interference with the plaintiff’s use must be “unreasonable,” the severity of the inflicted injury must outweigh the utility of the defendant’s conduct.

Question 72

When evaluating and determining a private nuisance claim you need to determine if the interference

Answer 72

outweighs the utility of the purpose

Question 73

When a claim for private nuisance is brought what is the test for determining there is a valid claim

Answer 73

the plaintiff need ONLY show an unreasonable interference with the use of the land, not loss of market value.

Plaintiffs can win a nuisance suit by showing that the interference with their use and enjoyment of their property was substantial, there is no requirement that the value of the property have been reduced.

Question 74

What is the degree of interference the courts use to evaluate a valid private nuisance claim

Answer 74

A plaintiff need only show an unreasonable interference with the use of his land. An occasional interference with a plaintiff’s enjoyment of her property suffices, if the interference is substantial and unreasonable. There is no requirement that the interference be constant

Question 75

trespass requires

Answer 75

an intentional entry onto the plaintiff’s property, therefore an unintentional act, will negate a claim for trespass, or unauthorized entry onto the homeowner’s land

Question 76

Trespass requires at least

Answer 76

a suit based on ordinary negligence

Question 77

So if you are given an example that the defendant driver skidded onto a landowner’s property, OR entered a homeowner’s property “intentionally” to avoid hitting a child or pedestrian, and the plaintiff brought a trespass claim, the defendant would argue

Answer 77

1- that the entry was not intentional because it was a result of the skid, and

2- If the driver intentionally chose to enter on the homeowner’s property to avoid hitting the child or pedestrian, the doctrine of “private necessity” would supply a defense to the trespass claim.

Either way, the driver’s conduct was not an intentional and unprivileged entry onto the homeowner’s premises.

Question 78

The doctrine of private necessity means that

Answer 78

the defendant entered the homeowner’s land by necessity and DID NOT need the homeowner’s authorization, and did not trespass. under the doctrine of private necessity if an entry was “unauthorized” is irrelevant

Question 79

In order for a plaintiff to bring a claim for serious emotional distress

Answer 79

The defendant must have violated some independent duty to the plaintiff, so the homeowner would have to establish either that: (1) the driver committed the tort of negligence (in which case severe emotional distress in the absence of physical injury would not be a barrier to recovery, given the homeowner was in the “zone of danger”; or (2) the driver committed trespass.

Question 80

The damages available for tort conversion is the

Answer 80

interference with a person’s possessory rights in a chattel that is so serious as to warrant that defendant pay full value for the chattel

Question 81

How do you distinguish in a fact pattern related to whether the owner’s possessory rights were interfered with or an actual conversion under tort law

Answer 81

The facts state that the chattel was either slightly damaged or in need or minor repair, therefore, not a conversion. The facts state that the chattel was broken or no longer working, so we can take this as a serious interference as opposed to a minor one, and therefore, a conversion

Question 82

Under the law governing conversion, if a defendant breaks the plaintiff’s chattel, the defendant is responsible for what costs

Answer 82

The defendant is responsible for the full value of the chattel. In other words, the law of conversion applies the rule, familiar from retailing, that “you break it, you own it.”

Question 83

If a neighbor takes another homeowners chattel without permission and uses it to the homeowner’s benefit, but the chattel breaks, the defendant neighbor is responsible

Answer 83

for the full value of the chattel. the fact that the neighbor was doing something ostensibly to benefit the homeowner would be deemed irrelevant–the homeowner certainly did not consent to the use

Question 84

The essence of conversion is that the recovery of the value is based on the principal of a

Answer 84

“forced sale” of the chattel to the defendant, in other words, the plaintiff is entitled to full value of the chattel before it was taken not just the actual damage amount needed to return it to the condition it was in before the defendant took it.

Question 85

The tort of conversion is the interference with a person’s possessory rights in a chattel that is so serious as to warrant

Answer 85

that the defendant pay full value for the chattel. The owner is entitled to exclusive possession of his chattel.

Question 86

What is the defense to conversion

Answer 86

the defenses of necessity applies the chattel was being used, for example, to save the owner’s life in an emergency

Question 87

What intent is not necessary to establish a claim for conversion

Answer 87

The intent to only temporarily, or not keep, the chattel, is not a necessary element in conversion

Question 88

The defendant’s temporary, but serious interference with another’s chattel, in a way that causes substantial damage to the chattel, has

Answer 88

committed conversion, despite a defendant’s intent to return of another person’s chattel. Conversion is the intentional interference with a person’s possessory rights in a chattel that is so serious as to warrant that defendant pay full value for the chattel.

Question 89

Reports have privilege on stories they publish when

Answer 89

they make a fair an accurate report of events of a public proceeding. If a news story is a fair and accurate publication of the facts, the qualified privilege for reports of meeting applies, shielding the newspaper

Question 90

The tort of invasion of privacy includes

Answer 90

public disclosure of private facts about the plaintiff by the defendant. A

Question 91

A plaintiff must prove what two elements in bringing an invasion of privacy tort claim

Answer 91

(1) that defendant published private information about the plaintiff, and (2) that the matter made public is on that a reasonable person would object to have made public

Question 92

A qualified privilege exists for accurate reports obtained at

Answer 92

(1) Public Hearings
(2) Meetings or Events of sufficient public interest

(3) A privilege exists to give a truthful accounting of facts disclosed at a public hearing, this privilege exists whether or not a speaker at a public meeting knows of the reporter’s presence

Question 93

The privilege to give a truthful report of matters discussed at a public meeting exists independently of whether the speaker (or the person on whose behalf the speaker spoke

Answer 93

Consented. The direct consent is not necessary for the story to be published

Question 94

A negligence per se claim due to a statute can be the basis for a claim if the following four elements are met:

Answer 94

1. The statute provides for a criminal penalty;
2. The statute was formulated to prevent the kind of harm suffered by the plaintiff;
3. The plaintiff is a member of the class the legislature intended to protect with the statute; and
4. The statute is clear as to the standard of conduct expected, and from whom and when

Question 95

Negligence per se has what effect on a claim?

Answer 95

Negligence per se ONLY means that the defendant CANNOT argue that his conduct was reasonable. It stops the defendant from arguing that his conduct was reasonable

Question 96

What is a negligence per se claim

Answer 96

A violation of a statutory standard, as long as there is a criminal penalty, violation of the statute CAUSED the harm, the plaintiff was a member of the class intended to be protected, and the statute is clear in the standard of conduct expected

Question 97

In order for a defendant to be negligence

Answer 97

the defendant would have failed to exercise such care as a reasonable person in his position would have exercised; this must have been a breach of the duty to prevent the foreseeable risk of harm to anyone in the plaintiff’s position; and the breach must have caused the plaintiff’s damages.

Question 98

When determining causation, where there are multiple causes, the defendant can be liable

Answer 98

if his act was a “substantial factor” in causing the plaintiff’s damages. Thus, while a continuing wrong that contributed to the neighbor’s injuries could be the basis of a negligence claim where there are multiple causes

Question 99

Under the specific fact pattern of a negligence per se determine if the plaintiff was or was not

Answer 99

an intended class to be protected by the statute

Question 100

What is the exception to the rule of non-liability to trespassers

Answer 100

The most important exception to trespassers is that once the owner has knowledge that a particular person is trespassing on this property, the is then under a duty to exercise reasonable care for the trespasser’s safety

Question 101

What is the general rule for the MBE in regard to a landowner’s duty to trespassers

Answer 101

The general rule is that a landowner owes no duty to a trespasser to make his land safe, to warn of dangers on it, to avoid carrying on dangerous activities on it, or to protect the trespasser in any other way.

Question 102

In order for a trespasser or plaintiff to bring a negligence claim he would have

Answer 102

to prove that the defendant owed him a duty to protect the trespasser / plaintiff from injury

Question 103

Under the MBE, If a landowner is unaware of a trespasser, and set a cause in motion due to the negligence of the landowner, the injured trespasser

Answer 103

will not be able to make out a prima facia case for negligence if the defendant-landowner was unaware of the trespasser’s presence

Question 104

In the MBE landowners have a right to engage in dangerous activities on their own land if

Answer 104

the owner does not know of the trespasser’s presence, and the general rule is that a landowner owes no duty to a trespasser to avoid carrying out dangerous activities on his land that may injure the unknown trespasser

Question 105

Under the general rule (on the MBE) that a landowner owes no duty to a trespasser to make his land safe, to warn of dangers on it, to avoid carrying on dangerous activities on it, or to protect the trespasser in any other way, but the EXCEPTION to the general rule is

Answer 105

that if a landowner knows a limited portion of his land is frequently used by trespassers, he must use reasonable care to make the presence safe

Question 106

If an land owner knows of such frequent use by trespassers the owner will not be liable

Answer 106

unless he behaves without due care (e.g., by failing to warn of a known danger).

Question 107

Without unreasonableness

Answer 107

there is no claim for negligence

Question 108

If a rescuer comes to the rescue of someone’s property, which is the property owner’s negligence that created the rescue situation, the owner may have what type of duty

Answer 108

The owner may have a “moral” duty, but does not have a “legal” duty because the owner did not create the harm, and in order for the owner to be liable to the rescuer of the owner’s property, the owner must have “breached some duty” towards the rescuer

Question 109

Under the rescuer doctrine, the defendant cannot assert what defense

Answer 109

The “assumption of risk” doctrine, which does not apply when a rescuer reasonably believes that help is necessary, the rescuer can undertake to help without assuming any risk, (as long as the rescuer’s acts are reasonable).

Question 110

To establish a “prima facia” case for intentional reckless infliction of emotional distress, the following four (4) elements must be shown:

Answer 110

(1) an act by the defendant amounting to extreme and outrageous conduct; (2) intent on the part of the defendant to cause the plaintiff to suffer severe emotional distress, or recklessness as to the effect of the defendant’s conduct; (3) causation; and (4) damages

Question 111

The R2d of Torts requires that in order for a plaintiff to recover under a claim for intentional emotional infliction of distress, a defendant’s conduct must be

Answer 111

the conduct must be “beyond all possible bounds of decency”.

Question 112

Under a claim for intentional emotional infliction of distress, what kind of behavior by the defendant does not satisfy the necessary conduct

Answer 112

whether or not the defendant had an intent is not relevant, given the possibility of reckless infliction of distress, the defendant’s conduct has to be more then just mere intent, and if the defendant did not specifically intend to harm the plaintiff, the burden is not met

Question 113

An element of a prima facia case for intentional or reckless infliction of emotional distress does not require that the plaintiff suffer a

Answer 113

physical injury; because physical injury is not an element of intentional or reckless infliction of emotional distress

Question 114

Define the “reckless disregard” element in a claim under intentional infliction of emotional distress

Answer 114

the plaintiff must show that the defendant reckless disregarded both the possibility that plaintiff would be harmed, and the possibility that conduct might well cause the plaintiff distress; the plaintiff may win, if the “extreme and outrageous” standard could be met

Question 115

Photographers do not have any privilege such as

Answer 115

special privilege exempting them from tortious conduct, in other words, if the taking and publication of a particular photo would be “extreme and outrageous” then the photographer would be liable

Question 116

The negligence per se doctrine does not excuse the plaintiff from showing

Answer 116

the “causation” element, and in particular that the defendant’s actions were the cause for the harm caused to the plaintiff.

Question 117

If a defendant was found to have violated a statute under the negligence per se doctrine, but compliance with a negligence per se statute would not have prevented from occurring to the plaintiff

Answer 117

then the absence of compliance could not have been the “cause in fact” of the injury to the plaintiff, and the plaintiffs loses. Therefore, being either complaint or non-complaint with the statute could not have prevented the harm, the defendant is not liable under negligence per se

Question 118

Negligence per se violation by the defendant does not make the defendant automatically liable, and the defendant will not be liable

Answer 118

unless the plaintiff shows that there is a causal link between the act constituting the violation and the resulting injury

Question 119

What standard are ocean liners held to on the MBE

Answer 119

Common carriers like ocean liners are not held to the strict liability. It is true that common carriers are required to exercise a “very high degree of care toward their passengers and guests,” which is to say they are liable for even slight negligence, but that is not the same as “strict liability.”

Question 120

The statutory safety requirement under negligence per se is intended to

Answer 120

protect a particular class of people who cannot protect themselves, courts are very hesitant to find that a member of that class assumed the risk of non-compliance.

Question 121

The assumption of risk doctrine states

Answer 121

that a plaintiff has assumed a risk of a certain harm if she voluntarily consented to take her chances that harm would occur. Where such an assumption of risk is shown, the plaintiff is completely barred from recovery, but the harm is limited to the foreseeable harm under the circumstances

Question 122

An action for battery has three elements

Answer 122

(1) the defendant’s act bringing about a harmful or offensive contact with the plaintiff’s person; (2) the defendant’s intent to bring about such contact or to create the apprehension of immediate contact; and (3) causation

Question 123

For a player-plaintiff in a sporting event to recovery for a claim for battery when the plaintiff alleges that the defendant struck and injured the plaintiff during the game

Answer 123

the plaintiff must prove that the defendant’s intentional force exceeded the plaintiff-player’s consent, and be an offensive contact constituting a battery

For the plaintiff-player to prevail in an action for battery he would have to prove an offensive contact.

Question 124

What defense is available to a defendant-player when it is alleged by a plaintiff-player that the defendant injured the plaintiff during a game

Answer 124

The contact was roughness up to the level to which the plaintiff-player impliedly consented to and the intentional contact by the defendant was not harmful or offensive.

Question 125

In a battery claim, consent would not a defense for the defendant if,

Answer 125

the defendant intentionally used more force than the consented-to level of force

Determine if the defendant “exceeded” the scope of the implied consent

Question 126

What is apparent consent

Answer 126

Apparent consent is that which a reasonable person would infer from the plaintiff’s conduct. For example, somebody who voluntarily engages in a body contact sport impliedly consents to the normal contacts inherent in playing it

If the opponent intended to strike the player, but in a way that was consistent with the play of game, then the player’s consent would be found to be implied by his participation in the game and his use of the same tactics

Question 127

When you have a battery claim that involves two sports players in which one player alleges that the opponent struck and injured the plaintiff, what is at issue is

Answer 127

Not the actual contact, but the “level of contact consented to by the players in the game.”

What would otherwise be a harmful or offensive contact will not be actionable if it was consented. The mere fact that the opponent intended to cause, offensive contact that was consistent with the general game-play would not expose him to liability

Question 128

If an defendant used more than the level of force to which a plaintiff would have be found to have consented, the defendant cannot assert the

Answer 128

implied consent doctrine, and the opponent could be liable

Question 129

The law will not recognize a claim for damages of emotional distress incident to…

Answer 129

harm which negligently caused property loss ONLY. where the only injury or physical damage from the defendant’s negligence is property damage, courts are unwilling to allow the plaintiff to recover for emotional distress at the property damage

The physical harm has to be “imminent bodily injury” from the negligence, not subsequent physical harm resulting from the emotional stress.

Question 130

A plaintiff can recover for emotional distress when a defendant’s conduct

Answer 130

where due to the defendant’s negligence the plaintiff either suffers physical injury or narrowly avoids it, the plaintiff can recover for emotional distress, at least if it is accompanied by physical symptoms.

Question 131

The law does not recognize a claim for damages for emotional distress when

Answer 131

incident to negligently caused property loss

Question 132

When there is no immediate physical harm (bodily injury) to the injured party whose property was only damaged, a claim for emotional distress

Answer 132

will not be permitted to recovery, when there was no danger to the plaintiff of bodily injury, and his emotional distress is due solely to his being upset at the property damage, courts do not allow recovery even if there are physical symptoms from the distress

Question 133

What are the appropriate damages when an intentional trespass occurs, in which the defendant enters the plaintiff’s land continuously

Answer 133

A trespass occurs when the defendant enters the plaintiff’s land, and when the trespass is intentional no harm to the plaintiff’s land is required for recovery

Question 134

Injunctive relief is an appropriate action in an intentional trespass claim when

Answer 134

The defendant’s intentional trespass is ongoing and reoccurring

Question 135

Compensatory damages are appropriate recovery for damages in an intentional trespass claim when

Answer 135

The defendant’s intentional trespass is ongoing and reoccurring, and the defendant damaged the plaintiff’s property

Question 136

Punitive damages are an appropriate recovery for damages in an intentional trespass claim when

Answer 136

when the defendant’s intentional trespass, as a repeated pattern of the trespasses, combined with the “pattern of harassment,” demonstrates malicious intent and ill will

Question 137

A trespass occurs when the defendant enters the plaintiff’s land, and does not

Answer 137

require any harm to the land

Question 138

Res Ipsa loquitur allows a plaintiff to create an inference of a defendant’s negligence if the plaintiff can prove:

Answer 138

(1) there is no direct evidence of a defendant’s conduct, (2) the event ordinarily does not occur except through the negligence of someone, (3) the instrument that caused injury was in exclusive control of the defendant, and (4) the injury was not due to the plaintiff’s own action.

Question 139

In a slip and fall claim in a grocery store, the plaintiff will need to prove

Answer 139

more then foreseeability. In addition to proving foreseeability, the plaintiff must also prove that the grocer fell below the standard of care of not behaving as a reasonable prudent person.

There must be a reasonable basis for concluding that the store employees were negligent in removing the split or item from the floor that caused the slip and fall. Consider (argue) that the spill or banana peel may have fallen seconds before the customer fell

Question 140

In a failure to warn theory, a pure question of law is determined by the

Answer 140

Judge, of whether a defendant who is selling dangerous substances have a duty to warn of their dangerousness if that dangerousness is unknown at the time. Generally, the defendant should be held to the standard of a prudent manufacturer who knew of the risks, regardless of whether the risks were reasonably discoverable before the initial discovery (after use) because “if and only if” the defendant is held to a duty to warn of these not -yet-known dangers can a reasonable jury possibly find that the defendant is liable for failing-to-warn

Question 141

In a failure to warn claim, the existence of a satisfactory alternative is

Answer 141

simply not relevant to the claim

Question 142

One of the first things to determine on the MBE when you are faced with a fact pattern for “failure-to-warn” is whether

Answer 142

the issue needs to be addressed by the court as a matter of law or matter of fact by the jury

Question 143

The concept of “inherent dangerousness,” to the extent that it’s relevant in a product-liability suit, generally refers to the issue of

Answer 143

“Unavoidable danger,” that is, if a product has some social utility, and is “unavoidably dangerous” (or as it is sometimes put, “inherently dangerous”), the defendant may be able to argue that the product is not “defective.”

That’s because the idea of a “defect’ involves something that is “wrong” and needlessly dangerous, and something that is unavoidably hazardous does not meet this standard

Question 144

In order to create liability for a defendant, any violation of a state statute must be the result

Answer 144

of an intentional act by the defendant. therefore, an unforeseeable unintentional act by the defendant will not make the defendant liable. Therefore, being unconscious during the statutory violation, is not a voluntary violation, and the negligence per se doctrine would not apply

There must be “direct” evidence that the defendant failed to exercise due care. If there is no direct evidence that the defendant failed to exercise due care, under ordinary negligence principles, the court would clearly have to find, as a matter of law, that no reasonable jury could find the plaintiff liable for negligence.

Question 145

The doctrine of res ipsa loquitur do not generally occur with car accidents because of at least two impediments

Answer 145

(1) it cannot be said that car accidents generally do not happen in the absence of negligence by someone (which is why res ipsa is rarely applied in car accident cases); and (2) even if res ipsa applied, it would merely entitle the plaintiff to get to the jury (i.e., supply enough evidence of negligence that a jury could properly find negligence), not entitle the child to a directed verdict on negligence (i.e., supply such incontrovertible evidence of negligence that the judge would conclude that no reasonable jury could find that there wasnt negligence)

Question 146

The standard for issuing a directed verdict against a plaintiff there

Answer 146

that there is at least one element of plaintiff’s prima facia case that no reasonable jury could find to have been proved or satisfied

Question 147

Abnormally dangerous activities trigger

Answer 147

Strict liability, and only the person carrying out the ultra hazardous activity has strict liability

Question 148

An engineer does not become liable for a design defect merely by including

Answer 148

someone else’s defect in the engineer’s blueprint, absent an affirmative requirement to review or inspect those other parts of the engineer’s blueprints, there is no liability

Question 149

When is joint and severally liability assigned

Answer 149

Where two or more tortious acts combine to proximately cause an “INDIVISIBLE” injury to a plaintiff, each tortfeasor is jointly and severally liable for that injury

Question 150

If a plaintiff sues an engineer personally, it means that

Answer 150

it does not matter whether the engineer was an independent contractor or not. Had the plaintiff sued a corporation, then the engineer’s status might be relevant to determine liability to the company

Question 151

A duty of disclosure only arises where,

Answer 151

there is a specific query about the matter, there is a special (fiduciary) relationship exists, or there are other circumstances requiring disclosure (e.g., half truth, subsequent information that makes prior statement misleading, or knowledge of undisclosed facts basic to a transaction.

Question 152

The qualification requirements of misrepresentation are:

Answer 152

1- Defendant’s misrepresentation of a material past or present fact;
2- Defendant’s knowledge of falsity or reckless disregard for falsity;
3- Defendant’s intent to induce plaintiff’s reliance;
4- Plaintiff’s actual, justifiable reliance; and
5- Damages

Question 153

The general rule is that misrepresentation requires some form of active concealment beyond mere silence. Exceptions to this rule include:

Answer 153

1- An affirmative duty to disclose (due to half-truth, subsequent information making the prior statement misleading, or knowledge of undisclosed facts basic to a transaction
2- A specific query about the matter; and
3- Existence of a special (e.g., fiduciary) relationship between the parties

Question 154

Third parties can recover for emotional distress, where someone else is intentionally physically harmed if:

Answer 154

1. They are present fro the physical harm;
2. They are closely related to the injured person;
3. The actor knows of the third party’s presence, and must be able to reasonably anticipate the third party’s distress that will result from the actor’s conduct AND

4- It is NOT necessary that the defendant-actor’s conduct be extreme and outrageous with respect to the third party

Question 155

In order for a third party to recover for emotional distress where someone else is intentionally harmed, where does the third party need to be in relation to the actual physical harm occurring to another person

Answer 155

It is not the third party’s fear for his own safety that determines liability, but his reaction to the harm inflicted on the victim. Thus while his presence will be necessary, he DOES NOT need to be in the “zone of physical danger” to recover.

Question 156

An invitee is a person

Answer 156

who enters onto the premises in response to an express or implied invitation of the landowner.

Question 157

What is the duty that a landowner or corporation owes an invitee

Answer 157

The landowner owes the invitee a general duty to use reasonable and ordinary care in keeping the property safe for the benefit of the invitee. That includes the duty to inspect for and correct hidden dangers and defects.

Question 158

A protruding fixture does not establish a landowner-defendant failed to use due care to protect an invitee because

Answer 158

The fixture may have been necessary to the functioning of the room (emergency room), and there may have been nothing that could reasonably have been done to make it safer for one who happened to faint, fall, or bang into it.

Question 159

A protruding fixture upon inspection may show that

Answer 159

the shape and or size posed an unreasonable risk to an invitee, once which could have been easily corrected by, say, the use of padding.

Question 160

When you have a fact pattern that indicates a injury to the plaintiff, you must determine

Answer 160

1- the status of the injured party, such as trespasser, invitee, licensee, etc.
2- was the harm unreasonable under the circumstances

Question 161

A common law claim for defamation has four (4) requirements:

Answer 161

1- Defendant’s defamatory statement;
2- Of and concerning the plaintiff;
3- Negligently or intentionally communicated to at least one third person, and
4- Plaintiff’s reputation damaged thereby

Question 162

A qualified privilege applies when

Answer 162

when the statement bears some relationship to a public or private interest, or either the publisher, the reader/listener, or both, or of the general public. If the statement is in furtherance of the interest, it’s protected, and it can only be destroyed by malice

Question 163

In order to defeat a defendant’s claim of a qualified privilege in defamation case, the plaintiff would have to prove

Answer 163

the defendant made the statement and the statement was “a knowing falsehood or reckless disregard for the truth”. Thus, merely proving that the statement was “false” would be insufficient: The plaintiff would have to prove the defendant “knew” it was false or recklessly failed to determine if it was true or false.

Question 164

In a defamation claim, if the defendant is a “non-media defamer,” without a qualified privilege, the

Answer 164

defendant would have to be “negligent” in order for the plaintiff to recover. In addition, some degree of fault will have to be proven

Question 165

A claim under strict product liability for improper design creates liability on the product’s manufacturer because

Answer 165

As long as the product was dangerously defective (1) when it left the manufacturer’s control, (2) the manufacturer was in the business of selling the product, and (3) the product did not substantially change between the toy company and the injured user.

Question 166

If a fact pattern states that a company was “held liable for a defective design” of another a 3rd party, this means that the plaintiff’s claim must be

Answer 166

for “strict liability”

Question 167

In a negligence claim for a product liability claim, the parties will

Answer 167

ONLY be held liable for its own negligence

Question 168

Indemnity applies to strict liability in such a way that

Answer 168

subsequent suppliers can seek indemnity from those before them in the supply chain, so that whoever was responsible for the defect is ultimately liable for it.

Question 169

How the indemnity operates:

Answer 169

The secondary tortfeasor pays a judgment due to the tort of the primary tortfeasor. The secondary tortfeasor can seek “indemnity” from the primary tortfeasor.

Question 170

Joint tortfeasors are

Answer 170

tortfeasors who act “in concert” with an express or implied agreement to produce a result

Question 171

Under joint liability, traditionally

Answer 171

each defendant is liable for al the damages. (however, many states modify joint liability so that a negligent joint tortfeasor who pays a judgment can recover pro rata shares from other joint tortfeasors

Question 172

A designer and manufacturing company are what kind of tortfeasors, in determining liability when a claim is brought for improper design?

Answer 172

They are primary (designer) and secondary (manufacturing company) tortfeasors. The designer and manufacturer are NOT “acting in concert” because it was the designer’s improper design that created the risk

Question 173

In indemnity claims, the fact pattern will indicate that there is

Answer 173

a preexisting relationship between two parties whereby the burden of a judgment will be shifted from a secondary to a primary tortfeasor, such as: employer-employee; designer-manufactuer

Question 174

Failing to do a “reasonable inspection” by of a product (designed by a third party) indicates that

Answer 174

Normally, that the failure to do a reasonable inspection would be a negligence claim against the manufacturer, and in that case if the claim was for negligence the secondary tortfeasor will not be able to recover from the primary tortfeasor for indemnity

Question 175

A claim for private nuisance is valid when

Answer 175

a defendant unreasonably interfered with the plaintiff’s use and enjoyment of his property. also a landowner who causes a “substantial, unreasonable” interference with a neighbors use or enjoyment of his property without a valid defense is liable for private nuisance

Question 176

One of the elements NOT required to bring a claim for private nuisance

Answer 176

It does NOT require the defendant’s desire to affect the plaintiff’s use, therefore, the interference does not have to be intentional

Question 177

When dealing with a private nuisance claim for interfering with a property owner’s use, the court will decide whether

Answer 177

the interference was “unreasonable,” and in other words, whether the benefit to the land by the interference was reasonable or purposeful, and the non-use and enjoyment was very small

Question 178

The tort of nuisance covers BOTH the

Answer 178

“use” and “enjoyment” of the land, not just use OR enjoyment, the interference has to be both

Question 179

A landowner who causes a substantial, unreasonable interference with a neighbor’s use or enjoyment of his property without a valid defense is

Answer 179

liable for private nuisance

Question 180

Many nuisances are not in violation of any particular law, since “positive law” (statutory, ordinances, and the like) do not purport to be the sole source of legal obligations, therefore, a

Answer 180

factory might get all the required local permits, but might still be a private nuisance because it’s unreasonably loud and noisy

Question 181

The R2d of Torts 373(1) holds that a prior landowner can be liable when

Answer 181

A vendor (seller) or land who has created or negligently permitted to remain on the land a structure or other artificial condition which involves an unreasonable risk of harm to others outside of the land is “subject to liability to such persons for physical harm caused by the condition” after his vendee has taken possession of the land.

Under R2d 373(2), except in the case where the vendor knowingly conceals the defect, the vendor’s liability under R2d 373(1) continues “only until the vendee has had reasonable opportunity to discover the condition and to take precautions”.

Question 182

When an MBE fact pattern or answer choice includes the word “defective” it means that the

Answer 182

That “strict liability” applies and not negligence, and you need to determine if the individual is the type of person or situation that raises to strict liability.

Question 183

Strict liability does not apply to

Answer 183

Landowners. Strict liability applies ONLY in the case of ultra hazardous activities and sales of “products.” When landowners sell real estate, courts normally do not apply strict product liability. The refusal to apply strict product liability is especially likely where the seller is an “amateur” seller (i.e., one not in the business of selling real estate).

Question 184

The defense that a previous owner (seller of a home or building) no longer occupied the property is generally,

Answer 184

not a valid defense, if the seller negligently failed to notice and correct the danger to persons outside the property, and the buyer hadn’t yet had a chance to discover and fix the problem.

Question 185

The assumption of risk doctrine ONLY applies

Answer 185

when a person knew of the risk and “voluntarily” exposed the themselves to the risk. the doctrine does not apply when someone only knew that something happened occasionally in the past because of negligence, does not raise to the level of assumption of risk

Question 186

A plaintiff can only prevail in a negligence claim only if she proves that the defendant’s negligence was

Answer 186

The cause in fact, as well as the proximate cause, of the plaintiff’s injury. A claim asserted for negligence must show that the failure to take other or certain action was, more probably than not, the cause in fact (but-for-cause).

The only way this could be true is if the plaintiff shows that such the other action would, more likely than not, have led to the reasonable prudent conduct.

The plaintiff must assert the required causal link between the asserted negligence and the bad outcome

Question 187

A defendant will not be liable for negligent conduct when

Answer 187

the defendant’s negligence failed to contribute to the bad outcome, and you need more than a conclusory statement or “but for” factual allegation

Question 188

A defendant will be liable if his negligence was

Answer 188

a “cause-in-fact” of the bad outcome

Question 189

In order to be jointly liable in a negligence tort claim, the plaintiff must prove that

Answer 189

the parties acted in “concert,”

Question 190

A claim for indemnification is permitted

Answer 190

under indemnity the secondary tortfeasor, who is without any fault, can seek payment for any judgment he pays due to the tort of the primary tortfeasor

Under indemnity, the burden of a judgment is fully shifted from a secondary tortfeasor to a primary tortfeasor

Question 191

“Several” liability is

Answer 191

where damages are divisible on a logical basis between tortfeasors, based on the damages each one caused–and each one must pay his share of the damages.

Question 192

Indemnity applies

Answer 192

Indemnity applies where a secondary tortfeasor pays a judgment due to the tort of a primary tortfeasor

Question 193

In joint liability, two or more tortfeasors act “in concert “ (with an express or implied agreement) to produce a result. The damages

Answer 193

must be “indivisible” between tortfeasors, and under traditional joint liability each defendant is liable for all the damages, however, many states have modified this with the rule of “contribution,” whereby a negligent joint tortfeasor who pays a judgment can recover pro rata shares from other joint tortfeasors

Question 194

Under several liability, the damages

Answer 194

the damages are “divisible” on a logical basis between tortfeasors, based on the damages each caused.

Question 195

Once you are told the facts on the MBE that defendant was negligent, then the defendant

Answer 195

is liable for any damages flowing from that negligence. the damages the defendant caused by his negligence–for which he will be liable – are part of the loss or damage that would have been prevented had the negligent act not occurred

Question 196

Due to a defendant’s negligence, the defendant will be liable for

Answer 196

The defendant will be liable for all damages flowing from his act. thus, the part of the plaintiff’s loss or damages that would (have been prevented) or not occurred is a direct result of the defendant’s negligence, since it would not have occurred “but for” the defendant’s negligence

Question 197

To establish a prima facia case for invasion of privacy by appropriation of a plaintiff’s picture or name, only one element needs to be proved:

Answer 197

That there was an unauthorized use by defendant of plaintiff’s picture or name for commercial advantage.

Question 198

In an invasion of privacy by appropriation of a plaintiff’s picture or name determine the

Answer 198

scope of authorization given, and if the authorization is limited to a single picture to a photographer

Question 199

Public figures retain what rights in regard to their pictures and likeness

Answer 199

Public figures retain the right NOT to have their image utilized for commercial advantage

Question 200

In an invasion of privacy by appropriation of a plaintiff’s picture or name the enjoyment of a product does

Answer 200

NOT convey the rights to commercial use of an image

Question 201

When you have a fact pattern dealing with a “day care” center, in order for the day care center NOT to be liable for negligence, the day care center had to exercise

Answer 201

there was a “reasonable number of qualified personal” that exercised “reasonable care” to ensure the safety of the children, and in this context, the day care center did not violate its duty of care, even though the child was injured

Question 202

Day care centers and schools are held to what standard of liability

Answer 202

Day care centers are held to a negligence standard for injuries to children under their care, and will NOT be held to a strict liability standard.

Day care centers, generally, are not negligent if the center is close to an attractive nuisance.

Question 203

Jointly and several liability addresses the

Answer 203

divisibility of damages between multiple tortfeasors. so when the percentage of the rancher’s liability each defendant cause hasnt been determined, so they’ll be jointly and severally liable.

Question 204

Joint liability applies when the damages are

Answer 204

NOT divisible between tortfeasors, making each tortfeasor liable for all the damages (some states apply the rule of contribution to negligent joint tortfeasors, such that a negligent tortfeasor who pays a judgment can recover prorata shares from the other tortfeasors

Question 205

A negligence claim requires proof that a defendant

Answer 205

that a defendant failed to exercise such care as a reasonable person in his position would have exercised; this failure must have been a breach of the duty to prevent the foreseeable risk of injury to anyone in the plaintiff’s position; and this breach must have caused the plaintiff’s damages.

Question 206

The rule used to determine causation depends on

Answer 206

How many causes there are: A single cause involves the “but for” test, and multiple causes involve the “substantial factor” test.

Question 207

where there are multiple factual causes, that resulted in the plaintiff’s damages, the plaintiff need ONLY prove that

Answer 207

an individual defendant’s act was a “substantial factor” in causing the plaintiff’s damages.

Question 208

Common law defamation has four elements:

Answer 208

1- The defendant’s defamatory statement; AND
2- Of and concerning the plaintiff; AND
3- Negligently or intentionally “published” to at least one third person; AND
4- The plaintiff’s reputation damaged thereby.

In addition, the plaintiff will have to prove some level of fault, depending on his and the defendant’s status (e.g., media, public figure); furthermore, if the statement was slander and not within a “per se” category, the plaintiff must prove “special” (pecuniary) damages.

Question 209

What are the “slander per se” categories: (which is not libel) and the four slander per se categories are:

Answer 209

1- Reflecting adversely on business/profession, or
2- Imputing a foul and loathsome diseases; or
3- Moral turpitude crime; or
4- Lack of chastity in a woman;

Question 210

Such damages that from flow from “special damages” from a common law defamation claim are

Answer 210

Lost of job, inheritance, gift, customers, and the like

Question 211

Such damages that flow from “general damages” from a common law defamation claim are

Answer 211

cover things like damage to reputation or personal relationships, and mental anguish

Question 212

Slander not within the four “per se” categories is the only type of defamation requiring proof of

Answer 212

Special damages for the purchaser

Question 213

A statement can be defamatory without having to be the result of

Answer 213

extreme and outrageous conduct, and the conduct can be extreme and outrageous without satisfying the elements of defamation.

Question 214

Normally, non-media defamers can only be liable if they are

Answer 214

negligent (as opposed to media defamers, where malice must be proven, or where a qualified privilege exists due to a special interest of the defamer, or the general public.)

Question 215

When a plaintiff has to prove “malice” in a defamation case, what other proof will suffice

Answer 215

Even if the purchase has to prove malice, “reckless disregard for the truth would suffice”; the plaintiff would NOT have to prove the defamer “acted knowingly”

Question 216

The defense of “defense of others” would be negated if

Answer 216

the defendant’s belief about the danger to the plaintiff was unreasonable

Question 217

When a defendant has intentionally caused a harmful or offensive contact with another, the defendant is liable for battery, unless

Answer 217

the defendant has a defense.

Question 218

The only defense that is plausible when a defendant uses intentional harmful or offensive contact in order to prevent a plaintiff from being harmed is

Answer 218

“the defense of others” That is that the defense of others requires that both the actor’s (defendant) belief that danger exists, and his (defendant’s) belief that the proposed conduct is a good way to deal with the danger, be reasonable.

If in fact, the defendant, SHOULD have realized that the plaintiff was not in fact in danger, and the defendant caused harm to the plaintiff, then this requirement for the defense-of-others would not exist

Question 219

When a defendant asserts the “defense of others” defense, what effect does “alternative methods of dealing with the situation” have on the defense

Answer 219

because the fact that an alternative method of dealing with the danger might have solved the problem does NOT automatically mean the defendant’s method in the defense of the plaintiff was unreasonable

Question 220

In order to negate the “defense of others” defense

Answer 220

the defendant’s choice of methods to prevent the harm, or his belief in the plaintiff’s peril, was “unreasonable.” the mere fact that an alternative method might have solved the problem does not mean that the defendant’s approach was unreasonable

Question 221

A defendant’s “intent” to save a plaintiff from harm would not immunize the defendant if his

Answer 221

“intent and belief” was unreasonable

Question 222

A defendant only qualifies for the defense of “defense of others” when

Answer 222

in the defendant’s belief in the existence of the danger, and this choice of methods, were reasonable

Question 223

When a plaintiff brings a claim against the defendant in tort, the plaintiff’s claim will fail if

Answer 223

the plaintiff cannot prove the defendant actually caused the alleged harm to the plaintiff, and if the plaintiff can at best introduce facts that raise a “mere suspicion” the claim will fail

Question 224

When a plaintiff brings a claim against the defendant in tort, the plaintiff’s burden

Answer 224

A plaintiff bears the burden of proving by a preponderance of the evidence that a defendant actually caused the injury, just as he must bear the burden of proving the other parts of his prima facia case

Question 225

A defendant’s argument against a plaintiff’s claim is better off making a

Answer 225

much more general argument that the plaintiff is required to make an affirmative showing that the defendant’s negligence caused the harm to the plaintiff, and that the plaintiff has failed to carry this burden by a preponderance of the evidence

Question 226

Defense of property is a defense to an intentional tort–one may use ONLY

Answer 226

reasonable force to prevent trespass, or other interference with one’s land or chattels. However, deadly force (i.e., force that is likely to cause death or serious bodily harm) cannot be used except to prevent an intrusion that is likely to cause death or serious injury to the inhabitants.

Question 227

What standard is judged when a property owner uses force by means of a automatic mechanical device

Answer 227

The case is judged by the same standards as if the owner were acting directly. Consequently if a live person in the owner’s position would not reasonably have believed that the intruder posed a serious risk of death or serious injury to the inhabitants, use of deadly force mechanical device would not be privileged.

Question 228

When determining force used against a trespasser, always determine whether

Answer 228

the trespasser posed a threat of death or serious injury to the inhabitants

Question 229

Deadly force cannot be used against a non-dangerous trespasser, even if

Answer 229

a Warning Sign is posted

Question 230

What is the exception for when a negligent tortfeasor may be liable for the criminal acts of a third party

Answer 230

When a tortfeasor should have realized the likelihood of a crime at the time of the defendant’s negligence, he may be liable for the criminal acts of a third party.

The issue of foreseeability is generally a question for the jury, so we must look closely at the facts.

Question 231

In a negligence claim what kind of evidence must the judge have in order to take the issue of negligence away from the jury

Answer 231

The issue of foreseeability is generally a question for the jury, so we must look closely at the facts, if the defendant was negligence

So, the evidence must be “overwhelming” for the judge to take the issue away from the jury by granting a summary judgment for either party.

Question 232

While normally a negligent tortfeasor will not be liable for the criminal acts of a third party, an exception exists, which is

Answer 232

When a tortfeasor should have realized the likelihood of the crime at the time of his negligence, he may be liable for the criminal acts of a third party.

Was the defendant on notice that “this was a high-crime neighborhood” and there has been many thefts”

Question 233

A claim for negligent misrepresentation, the defendant

Answer 233

the defendant’s mental state must be negligent, the defendant must have made the statement during the course of his business and with a pecuniary interest in the transaction, and the plaintiff must be a person or member of a limited group that the defendant intended to reach or who the defendant knows a recipient of the information intended to each.

Question 234

Even if the elements of negligent misrepresentation are met, recovery for negligent misrepresentation is

Answer 234

usually limited to pecuniary loss unless it involves a risk of physical harm, and a claim for “emotional distress” standing alone, is not sufficient to assert a claim for negligent misrepresentation

Question 235

If a defendant’s statement makes a prediction, without factual information, then the claim will almost always

Answer 235

if a defendant predicts something will happen it will almost always be held to be merely an unactionable opinion. So you need to determine if the defendant misrepresented some factual information

Question 236

In order for a plaintiff to recover for a misrepresentation claim, the plaintiff must

Answer 236

a plaintiff must show that he relied on the misrepresentation and that his reliance was justifiable.

Question 237

In order for a plaintiff to recover for a misrepresentation claim, the plaintiff must have justifiably relied on the misrepresentation AND had

Answer 237

sustained appropriate damages. Recovery for negligent misrepresentation is usually limited to pecuniary loss unless it involves a risk of physical harm.

Question 238

Negligent misrepresentation does not extend to

Answer 238

all foreseeable damages, such as emotional distress

Question 239

What type of physical contact is permissible

Answer 239

1- consent (given the party can consent)
2- ordinary touches that are part of life in crowded society, which are neither unreasonable nor inconsistent with ordinary social norms privileging such contacts
3- determine if defendant’s touch was “neither unreasonable nor inconsistent with ordinary social norms privileging such contacts.

Question 240

Ordinary touches that are part of life in crowded society are a defense to

Answer 240

a claim for battery or negligence

Question 241

An assault is

Answer 241

the intentional causing of an apprehension of harmful or offensive contact . A plaintiff would have to prove that she was about to be touched

Question 242

What negates the defense of “Ordinary touches that are part of life in crowded society”

Answer 242

If the plaintiff gives an indication that put the defendant on notice that she does not want to be subjected to the ordinary touches that are part of life in crowded society, and therefore, withdrew consent to ordinary touches

In the absence of such an indication from him or her, the passenger was entitled to believe that she implicitly consented to a light tap to get her attention

Question 243

Intentional Torts, such as battery, assault, intentional infliction of emotional distress DO NOT consider what element of the defendant’s conduct

Answer 243

The “reasonableness” of the defendant’s conduct because a battery is the “intentional” infliction of harmful or offensive bodily contact. Consequently, whether the defendant’s conduct was reasonable under the circumstances is irrelevant if in fact the defendant intended to make a harmful or offensive conduct with the plaintiff.

Thus, reasonableness would ONLY be relevant in a negligence action BUT not in a battery action

Question 244

Intent is an issue

Answer 244

In a battery claim, battery is the intentional infliction of a harmful or offensive bodily contact. Consequently, the plaintiff must establish the defendant’s intent to cause contact with the plaintiff

Question 245

In a Battery claim the plaintiff must prove that some sort of

Answer 245

bodily contact occurred, and the issue is whether “smoke” is a bodily contact.

Question 246

Once a plaintiff establishes that a “contact” occurred for a claim under battery, the plaintiff must prove that

Answer 246

must establish that the contact was “offensive”

Question 247

Punitive damages are not recoverable in what types of claims

Answer 247

punitive damages are not available in ordinary negligence cases.

Question 248

A plaintiff may be able to recover for punitive damages in what types of claims against the defendant

Answer 248

1- Intentional torts, such as assault or battery, and

2- punitive damages may be available to victims of reckless conduct by the defendant

BUT, punitive damages are not recoverable for “ordinary negligence cases”