Torts

Question 1

negligence overview

Answer 1

to establish a prima facie case for negligence, a plaintiff must prove duty, breach, causation, and damages

Question 2

duty

Answer 2

a duty of care is owed to all foreseeable persons that may be injured by D’s failure to meet the reasonable standard of care. under the majority view (Cardozo), D is only liable to Ps within the zone of foreseeable harm. under the minority view (Andrews), a D owes a duty to everyone harmed

the standard of care owed by a D to P is that of a reasonably prudent person under the circumstances as measured by an objective standard
*unless special standard of care applies (landowner, physician) or statute negligence per se)

• presumed to have average mental abilities & knowledge
• physical characteristics: modified standard - compared with reasonably prudent person with like characteristics
• intoxication: same standard as sober people unless involuntary
• children: modified standard: reasonable child of similar age, intelligence & experience
• -> but if engaged in high-risk adult activities (driving a car) held to objective standard for adults
• categories of Ps:
• rescuers: a person who comes to the aid of another is a foreseeable victim
• crime victims

*in general, no affirmative duty to help others, unless
1. assumption of duty
2. placing another in danger
3. by authority
4. by relationship (common carrier, innkeeper)
if any of these, then have duty of reasonable care

Question 3

breach

Answer 3

D will be in breach of his duty to P if he fails to meet the applicable standard of care

• evidence of custom is admissible but not dispositive
• dispositive for professionals
• physician like others, patient must give informed consent, docs must explain risks unless commonly known, patient is unconscious, waives, incompetent, or would be harmed

*Physicians have a duty to disclose the risks of a medical procedure or treatment to a patient in advance so patient can give informed consent. In most jurisdictions, the required level of disclosure is governed by custom among physicians. Failure to warn subjects physician to negligence liability if: (1) patient would not have otherwise consented, and (2) P suffered that physical harm

Question 4

negligence per se

Answer 4

alternative duty/breach analysis

rule: when a statute imposes upon any person a specific duty for the benefit or protection of others, a violation of the statute will constitute negligence per se

1. in order for the statute to apply, P must be in the class of people meant to be protected by the statute
2. P must suffer the type of harm the statute intended to protect against
3. D will be liable to P if his violation of the statute proximately caused Ps harm

• violation by P counts as comparative/contributory negligence
• compliance with statute doesn’t mean person wasn’t negligent

defenses:

• complying with statute would’ve been even more dangerous than violating it
• compliance was impossible or emergency justified violation
• incapacity (physical disability), exercised reasonable care in trying to comply, vagueness

Majority: duty and breach can be conclusively presumed
Minority: violation of a statute or ordinance is merely evidence of negligence that creates a rebuttable presumption that the defendant breached a duty of care

Question 5

causation

Answer 5

to be liable, D’s act must be both the actual and proximate cause of Ps injury

cause in fact/actual cause:

• to prove actual causation, P must show that but for D’s act, Ps injury would not have occurred
• if there are multiple causes, D will be a cause in fact if he was a substantial cause of Ps injury

(-Ps harm caused by only one of a few Ds (usually 2) and each was negligent, courts shift burden to Ds and impose joint & several liability on both unless 1 can show he didn’t cause harm
-if 2 or more tortfeasors acting together acting together collectively and that causes Ps harm, all Ds will be jointly & severally liable)

(medical misdiagnosis:

• traditional: patient with less than 50% chance of survival couldn’t recover bc likely to die anyway, no but-for cause
• loss of chance doctrine: if negligently reduce Ps chance of survivor, can recover for lost chance of recovery)

proximate cause/legal cause: P must show that her injuries were the foreseeable result of Ds conduct (whether injury was within the scope of her breach)

intervening cause: an intervening cause is an outside force/action that contributes to Ps harm AFTER Ds act/omission has occurred. if the intervening cause is unforeseeable, it is a superseding cause and Ds liability will be cut off

Question 6

negligence damages

Answer 6

to recover damages, P must prove actual injury and not just economic loss

Question 7

defenses overview

Answer 7

• contributory negligence/comparative fault
• assumption of the risk

Question 8

contributory negligence/comparative fault

Answer 8

common law: in a contributory negligence jurisdiction, Ps negligence is a complete bar to recovery
-last clear chance doctrine: allows negligent P to recover upon showing D had last clear chance to avoid injuring P but failed to do so

in a pure comparative negligence jurisdiction, Ps negligence is not a complete bar to recovery, but her damages are reduced by proportion that Ps fault bears to the total harm (*assume this on MBE)

modified comparative negligence: if P is more at fault than D, P’s recovery is barred
-if more than 1 D, Ps negligence is compared with total negligence of all Ds combined

*comparative fault is not a defense to intentional torts

imputed contributory negligence (employee or business partner), but doesn’t apply to

• child P whose parent’s negligence contributed to her harm in suit against third party
• married P whose spouse was contributorily negligent in causing the harm in suit against third party

Question 9

assumption of the risk

Answer 9

Ps recovery may be barred if she voluntarily and knowingly assumed the risk of her behavior

express AOR (contract):

1. is the waiver clear?
2. is the waiver enforceable?
   * courts might not enforce exculpatory provisions if:
   - waiver disclaims liability for reckless or wanton misconduct
   - gross disparity of bargaining power
   - party seeking to enforce offers great importance to public (medical services)
   - contract defense (fraud, duress)
   - enforcement against public policy

implied AOR:

1. participants in & spectators of athletic events: can’t recover bc party knew of risks and chose to accept
2. unreasonably proceeding in the face of known, specific risk
   - contributory negligence jurisdiction and minority of comparative fault: AOR is total bar to recovery
   - most comparative fault jurisdictions: merely reduces recovery (issue is whether P reasonably or unreasonably encountered the risk)

Question 10

strict liability overview

Answer 10

a D engaged in an abnormally dangerous activity will be held strictly liable - without any proof of negligence - for personal injuries & property damages caused by the activity

• abnormally dangerous activity
• wild animals
• defective products

Question 11

abnormally dangerous activity overview

Answer 11

an abnormally dangerous activity is one with a high risk of harm, that is not commonly found in the community, which has a risk that cannot be eliminated with due care

e.g. explosives, fumigating, disposing of hazardous waste, storage of chemicals

• causation (actual & proximate, intervening cause)
• damages
• defenses (AOR)

Question 12

abnormally dangerous activity causation

Answer 12

to be liable, the abnormally dangerous activity must be both the actual & proximate cause of Ps injury

actual cause: to prove actual causation, P must show that but for Ds act, Ps injury would not have occurred. if there are multiple causes, D will be a cause in fact if he was a substantial cause of Ps injury

proximate cause: to prove proximate cause, P must show her injuries were foreseeable result of Ds conduct

intervening cause: an intervening cause is an outside force/action that contributes to Ps harm AFTER D’s act/omission has occurred. if the intervening cause is unforeseeable, it’s a superseding cause and Ds liability will be cut off

Question 13

abnormally dangerous activity damages

Answer 13

to recover damages, P must prove actual injury and not just economic loss

Question 14

strict liability defenses

Answer 14

assumption of the risk: Ps recovery may be barred if she voluntarily and knowingly assumed the risk of her behavior. assumption of the risk is not the only defense, but it is the best defense –> complete bar to recovery

contributory negligence: Ps contributory negligence does not bar recovery
comparative negligence: in some jurisdictions, Ps negligence does not bar recovery, in others it diminishes her recovery

Question 15

wild animals

Answer 15

SL also applies to owners of wild animals or domestic animals, if the owner knows of dangerous propensities of the domestic animal

(same analysis of causation, damages, and defenses as abnormally dangerous activity)

*SL applies to an injury caused by Ps fearful reaction to the sight of an unrestrained wild animal, in addition to injuries caused directly by the wild animal

Question 16

products liability overview

Answer 16

• strict products liability
• negligent products liability
• warranties

Question 17

strict products liability overview

Answer 17

D who is in the business of selling a commercial product may be strictly liable for a defective product causing foreseeable injuries to P. to establish a prima facie case for strict products liability, P must prove that D had an absolute duty as a commercial seller of the product, that D produced or sold a defective product, actual & proximate causation, and damages

• absolute duty
• defective product
• causation (actual & proximate)
• damages
• defenses

Question 18

strict products liability absolute duty

Answer 18

D who is in the business of selling a commercial product - including manufacturers, distributors, and retail sellers - is under an absolute duty to provide a safe product

*not casual or occasional seller

Question 19

strict products liability defective product

Answer 19

a product is defective when, at the time of the sale or distribution, it contains a manufacturing defect, a design defect, or inadequate instructions or warnings

1. manufacturing defect:
   - a deviation from what the manufacturer intended the product to be that causes harm to P
   - the test for the existence of such a defect is whether the product conforms to D’s own specifications
2. design defect
   - depending on the jurisdiction, courts usually apply either the consumer expectation test or risk-utility test (or a hybrid of both) to determine whether a design defect exists
   - under the consumer-expectation test, P must prove that the product is dangerous beyond the expectation of an ordinary consumer
   - under the risk-utility test, P must prove that a reasonable alternative design that is economically feasible was available to D, and failure to use that design rendered the product unreasonably unsafe
3. failure to warn
   - if there were foreseeable risks of harm, not obvious to an ordinary user of the product, which could’ve been avoided by providing reasonable instructions or warnings
   - learned intermediary rule: manufacturers of prescription drugs must warn prescribing physicians (except drugs marketed directly to consumers)

*seller is liable in defective product case, but doctor/dentist doesn’t count as seller (is service provider)

Question 20

strict products liability causation

Answer 20

actual causation: the product must have been defective when it left Ds control

proximate causation: defect causing Ps injuries must have occurred when the product was being used in an intended or reasonably foreseeable way. D will still be liable if P misuses the product and if injured, if the misuse is foreseeable

Question 21

strict products liability damages

Answer 21

P must suffer personal injury or property damages

Question 22

strict products liability defenses

Answer 22

1. contributory negligence:
   - in contributory negligence jurisdiction, Ps negligence is a complete bar to recovery when P’s fault consisted of UNREASONABLY proceeding in the face of a KNOWN product defect
   - in a pure comparative negligence jurisdiction, Ps negligence is not a complete bar to recovery, but her damages are reduced by proportion that Ps fault bears to the total harm
2. assumption of the risk:
   - Ps recovery may be barred if she voluntarily and knowingly assumed the risk of her behavior
3. product misuse, modification, or alteration, unless it was foreseeable
4. substantial change in the product bars recovery
5. compliance with governmental safety standards: evidence product isn’t defective, but not dispositive
6. state of the art defense: relevant state of the art at time of manufacturing/warning is evidence that product is not defective in some jurisdictions. in others, compliance is a complete bar to recovery
7. disclaimers, limitations, and waivers are not defenses to SL claims for defective products

Question 23

negligent products liability

Answer 23

under a negligent products liability theory, a plaintiff must prove duty, breach, causation, and damages

duty:
-a duty of care is owed to all foreseeable persons that may be injured by D’s failure to meet reasonable standard of care. under majority view (Cardozo), D is only liable to Ps within the zone of foreseeable harm. under minority view (Andrews), D owes a duty of care to everyone harmed

standard of care:
-the standard of care owed by D to P is that of a reasonably prudent person under the circumstances as measured by an objective standard (unless special standard of care or negligence per se)

breach: D will be in breach of his duty to P if he fails to meet the applicable standard of care

causation, damages &* defenses: same as analysis for SL “see above”

Question 24

SL warranties overview

Answer 24

• express warranty
• implied warranty of merchantability
• implied warranty of fitness for a particular purpose

defenses: disclaimers (contracts), and normal tort defenses (AOR, comparative, contributory, product misuse)

Question 25

SL express warranty

Answer 25

a promise/guarantee made by D about the product. if the product doesn’t meet this warranty, D has breached this warranty and P can recover damages

Question 26

SL implied warranty of merchantability (always discuss)

Answer 26

a product sold is impliedly warranted to be reasonably useful and safe for average use

Question 27

SL implied warranty of fitness for particular purpose

Answer 27

if a seller knows or has reason to know of a particular purpose for which some item is being purchased by the buyer, the seller is guaranteeing that the item is fit for that particular purpose

Question 28

defamation overview

Answer 28

P may bring action for defamation if D’s defamatory language is of or concerning P, is published to a third party who understands its defamatory nature, and damages Ps reputation

• liable even if repeat & identify source
• a deceased person cannot legally be defamed. The estate of the deceased official cannot maintain an action for defamation because the defamatory statement was made after the official’s death.

Question 29

1. defamatory language

Answer 29

to be defamatory, the language used must diminish the respect, esteem, or goodwill towards P

must be false

Question 30

2. of or concerning P

Answer 30

a reasonable person must believe that the defamatory communication refers to this particular P and holds him up to scorn/ridicule in the eyes of a substantial number of respectable members of the community

Question 31

3. publication

Answer 31

publication of defamatory matter is its intentional or negligent communication to a third party

*internet service providers/platforms are not publishers

Question 32

4. damage to Ps reputation

Answer 32

general damages are presumed when the comments involve libel (written statements), but not presumed when it involves slander (oral comments)

damages for slander per se are presumed when the comments involve the professional reputation, disease, crimes of moral turpitude, or unchaste behavior

Question 33

5. constitutional defamation requirements

Answer 33

apply if:

1. P is public official/figure, or
2. P is a private individual, but the statement involves a matter of public concern

a. falsity: P must also prove that the statement is false

b. fault:
- if P is public official/figure, he is required to prove that D acted with actual malice (knowledge of falsity or reckless disregard as to truth/falsity of statement)
- if P is private individual and D’s statement involves matter of public concern, P must prove D acted with fault (negligence or actual malice)

c. damage to Ps reputation:
- P must prove actual damages if he’s public figure/official or private figure but matter of public concern is involved.
- if P is private figure and shows malice, he can recover punitive damages as well

Question 34

defamation defenses

Answer 34

1. truth: absolute defense
2. consent: absolute defense as long as D didn’t exceed scope of consent
3. absolute privilege: can never be lost and used for remarks during judicial/legislative proceedings, btw spouses, or in required publications
4. qualified privilege: one affecting an important public interest, in the interest of D or 3rd party, and can be lost if statement exceeds the scope of the privilege or the speaker acted with malice

Question 35

invasion of privacy torts overview

Answer 35

• right of privacy applies to individuals, not corporations
• typically terminates upon Ps death
• don’t need to prove special damages, emotional/mental distress is sufficient
• truth is NOT a defense to privacy torts
• misappropriation
• intrusion upon seclusion
• false light
• public disclosure of private facts

I FLAP: intrusion, false light, appropriation, private facts

Question 36

misappropriation

Answer 36

the unauthorized use of Ps name, likeness, or identity for Ds advantage (commercial or otherwise)

P must prove lack of consent and injury

Question 37

intrusion upon seclusion

Answer 37

Ds act of intrusion into Ps private affairs that are objectionable to a reasonable person (no publication is required)

Question 38

false light

Answer 38

P must prove that D:

1. published facts about P or attributed views/actions to P
2. that place him in a false light and
3. are highly offensive to a reasonable person

Question 39

public disclosure of private facts

Answer 39

1. D publicizes a matter concerning the private life of another, and
2. publication would be highly offensive to a reasonable person and is not of legitimate concern to the public

Question 40

intentional torts overview

Answer 40

act, intent, & causation
*children/mentally incompetent can be liable if act with requisite intent

• personal injury
• harm to property

Question 41

personal injury overview

Answer 41

• battery
• assault
• IIED
• false imprisonment
• defenses

Question 42

battery

Answer 42

1. harmful or offensive contact (objective standard) with Ps person (or anything connected to it),
2. intent by D to cause the touching (transferred intent applies), &
3. causation

• victim need not be conscious of the touching to be offensive
• if victim is hypersensitive and D knows this, D may still be liable
• no proof of actual harm is required, P can recover nominal damages
• “eggshell P” rule: liable for all harms that flow from battery even if worse than expected
• punitive damages if D acted outrageously or with malice

Question 43

assault

Answer 43

1. an act/threat (mere words not enough) placing P in reasonable apprehension of imminent harmful or offensive bodily contact,
2. intent by D to place P in apprehension (or to cause contact itself - transferred intent applies), &
3. causation

• P must be aware of D’s action
• threats of future/hypothetical harm not sufficient

*mere words generally not enough unless D able to carry out action imminently & takes action designed to put V in state of apprehension

• no proof of actual damages is required, can recover nominal damages
• can get punitive damages

Question 44

IIED

Answer 44

D intentionally or recklessly engages in extreme and outrageous conduct that causes P severe emotional distress

extreme & outrageous: conduct that exceeds the possible limits of human decency, so as to be entirely intolerable in a civilized society

damages: P must prove severe emotional distress beyond what a reasonable person should endure
- only liable for hypersensitivity if aware of it

*public figures constitutional limitations

liability to third parties present:

• D can be liable if he distresses a member of victim’s immediate family
• D can be liable if he distresses a bystander if the distress results in bodily injury to the bystander

*The traditional doctrine of transferred intent does not apply to IIED when D intended to commit a different intentional tort (such as a battery) against a different victim. However, transferred intent may apply to IIED if, instead of harming the intended person, the defendant’s extreme and outrageous conduct harms another

*If the plaintiff is a public figure who alleges that his/her emotional distress was caused by the defendant’s publication (e.g., newspaper article, broadcast), then the plaintiff must also show that the defendant published a false statement of fact with actual malice—i.e., knowledge of, or reckless disregard for, the falsity of the statement.

Question 45

false imprisonment

Answer 45

1. the intentional confinement/restraint of P (physical barriers or force, threats, invalid use of legal authority, duress) for any amount of time
2. there must be no reasonable means of escape
3. actual damages are unnecessary if P was aware of confinement

• intent: D acts with purpose of confining P or knowing P’s confinement is substantially certain to result
• transferred intent applies

-damages: can recover nominal damages & actual damages are also compensable

shopkeeper’s privilege (defense):
-if a shopkeeper reasonably suspects P of stealing, he can detain P for a reasonable amount of time in a reasonable manner

Question 46

intentional torts defenses

Answer 46

1. consent:
   - must be voluntary
   - D will be liable if he exceeds the scope of P’s consent
   - apparent consent: a defendant is entitled to rely on consent apparent from conduct
2. self-defense:
   - use of reasonable force to defend against an offensive contact or bodily harm
   - initial aggressor not permitted to claim self-defense unless other party responded to non-deadly force with deadly force
   - not liable to injury to bystanders as long as accidental/not negligent
3. defense of others:
   - may use reasonable force in defense of others, if others would be entitled to use self-defense
4. defense of property:
   - can use reasonable force (never deadly) to prevent tortious harm to property
   - reasonable force to reclaim personal property wrongfully (not legally) taken, but only if first request return (unless futile)
   - use of force no longer permitted to regain possession of land
5. parental discipline:
   - parents can use reasonable force to discipline children
6. privilege of arrest:
   a. private citizen:
   - can use reasonable force to make arrest for felony if felony was actually committed & reasonable grounds to suspect person committed it
   b. police:
   - must reasonably believe felony was committed and person being arrested committed it
   c. misdemeanor:
   - police can only arrest if misdemeanor committed in officer’s presence
   - private person can only arrest if there’s a “breach of the peace”

Question 47

harm to property overview

Answer 47

• trespass to chattels
• conversion
• -> different in terms of degree
• trespass to land
• nuisance

Question 48

trespass to chattels

Answer 48

1. an intentional interference with Ps right to possess personal property either by:
   - dispossessing P of the chattel
   - using or intermeddling with the chattel, or
   - damaging the chattel
2. intent: only intent to perform the act that interferes with the possession (transferred intent applies)
   * mistake of law not defense
3. causation
4. damages:
   - actual damages, damages resulting from loss of use, or cost of repair
   - in cases of use/intermeddling, P can only recover actual damages

Question 49

conversion

Answer 49

1. SERIOUS interference with Ps possession of her chattel
2. intent to perform the act that interferes with the possession (transferred intent does not apply)
3. causation, &
4. damages
   * the serious interference with Ps personal property results in damages for its full value at the time of conversion

*mistake of fact/law not defense

trespass vs. conversion:

• duration & extent of interference
• Ds good faith
• expense/inconvenience to P
• extent of harm
• the more extreme the interference, the more likely the court will find conversion

Question 50

trespass to land

Answer 50

requires

1. the physical invasion of another’s land &
2. intent to enter the land or cause physical invasion (transferred intent applies)

• mistake of fact not a defense
• anyone in possession can bring action, not just owner
• no proof of actual damages required

necessity defense:

1. private necessity allows a person to enter Ps land to protect her own person/property from harm; she’s not liable for trespass but responsible for actual damages (not nominal)
2. public necessity allows a person to enter Ps land to prevent an imminent public disaster; not liable for damage if her actions were reasonable or she had reasonable belief that necessity existed, even if initial entry was not necessary

Question 51

nuisance

Answer 51

private nuisance: substantial (offensive to reasonable person) & unreasonable (balance interests of P and D) interference with another’s use or enjoyment of his land
-can bring suit even if you personally are not annoyed, just reasonable person

public nuisance: unreasonable interference with a right common to the general public (*need not have possessory rights)

defenses:

• regulatory compliance is a partial defense if D is following the law
• coming to the nuisance is a partial defense

remedies available are money damages & injunctive relief

abatement (eliminating the nuisance):

• private nuisance: reasonable force is permitted to abate the nuisance; P must give D notice of nuisance first and D must refuse to act before action can be taken
• public nuisance: absent unique injury, public nuisance may be abated only by public authority

Question 52

vicarious liability

Answer 52

generally, an employer is liable for the torts of an employee, but not for the torts of an independent contractor
-if employer retains a right of control over the way that employee does the work

-joint & several liability, employer can seek indemnification

under vicarious liability, employer is liable for torts of employee if employee is acting within the scope of employment (even if employee commits an intentional tort). an employer will not be liable for negligence of their employees outside of the duties
-employer liable for detour, not frolic (major deviation)

an employer is generally not liable for the negligence of an independent contractor. however, D will be liable for negligence of contractor if negligence involves a non-delegable duty or an inherently dangerous activity

• under apparent agency, IC can be treated as employee
• business partners liable for torts of other business partners committed within scope of business’s purpose
• automobile owners
• negligent entrustment: directly liable for negligently entrusting car (or dangerous object) to person not in position to care for it
• family purpose doctrine: vicariously liable to torts of family member driving with permission
• owner liability statutes: owner of car vicariously liable for torts of anyone driving car with permission

*parents generally not vicariously liable for minor children’s torts, but can be liable for negligent supervision

dram shop liability: bar owners/bartenders/social hosts liable for injuries caused when people drink too much and injure third parties

Question 53

negligent infliction of emotional distress (NIED)

Answer 53

when D’s negligence creates a foreseeable risk of physical injury to P through a threat of physical impact that results in emotional distress

the emotional distress generally must result in some form of bodily harm (physical manifestation of distress like nausea, insomnia or miscarriage)

• P was within zone of danger of threatened physical impact that caused emotional distress
• bystander can recover if he’s closely related to person injured by D, was present at scene of injury, & personally observed injury
  3. special relationship: negligent mishandling of corpse, misdiagnosis

*However, the duty to avoid infliction of emotional distress also exists without any threat of physical impact in cases in which there is a special relationship between the plaintiff and the defendant, such as when a common carrier mistakenly reports the death of a relative

Question 54

note for MBE

Answer 54

always assume joint & several liability and pure comparative negligence (unless told otherwise)

Question 55

guest statutes

Answer 55

driver only has duty to refrain from gross or wanton and willful misconduct (more than negligence)

Question 56

attorney’s fees

Answer 56

not recoverable in personal injury suit

Question 57

modern trend re standard of care for negligence

Answer 57

in lieu of the traditional reasonable person standard of care, the modern trend is to apply a cost-benefit analysis, which requires looking at the likelihood and severity of the harm and the defendant’s burden (costs and disadvantages) in avoiding the harm (BPL hand formula)

Question 58

transferred intent

Answer 58

when the intent to commit one tort satisfies the required intent for a different tort

• diff intentional tort against same person
• same intentional tort against diff person
• diff intentional tort against diff person

Question 59

negligence standards of care for specific situations

Answer 59

1. common carriers & innkeepers:
   - traditional rule: utmost care, highest duty of care
   - modern rule: liable only for ordinary negligence
   * majority of courts continue to hold common carriers to the higher standard of care, but now hold innkeepers to ordinary negligence standard
2. automobile drivers
   - guests & friends in car: drivers traditionally only liable for grossly negligent, wanton, or willful misconduct (“under “guest statutes”), but most jurisdictions apply general duty of reasonable care
3. bailors & bailees:
   - bailor must warn a gratuitous bailee of known dangerous conditions
   - if bailor receives sole benefit, bailee has lesser duty
   - if bailee receives benefit, has higher duty of care (liable for slight negligence)
4. emergency situations: standard of care is that of reasonable person under same circumstances

Question 60

possessors of land re standard of care

Answer 60

1. traditional tripartite structure: standard of care depends on status of entrant as a trespasser (lowest standard of care), licensee (intermediate), or invitee (highest)
2. modern: reasonable standard of care under the circumstances, with the status of the entrant as one of the relevant circumstances
   - except flagrant trespassers

Question 61

trespassers

Answer 61

someone on the land without consent or privilege

traditional approach:

• duty to refrain from willful, wanton, intentional, or reckless misconduct
• no duty owed to undiscovered trespasser
• must warn/protect discovered or anticipated trespassers from hidden dangers
• “attractive nuisance” doctrine
• flagrant trespassers in some jurisdictions owed an even lesser duty of care

Question 62

“attractive nuisance” doctrine

Answer 62

may be liable for injuries to children trespassing on land if:

1. an artificial condition exists in a place where owner knows/has reason to know that children are likely to trespass
2. land possessor knows/has reason to know artificial condition poses unreasonable risk of death or serious bodily harm
3. children, bc of age, do not discover or cannot appreciate the danger
4. utility of maintaining condition is slight compared to risk of injury, and
5. land possessor fails to exercise reasonable care

Question 63

licensees

Answer 63

enter the land with express or implied permission (social guests)

traditional rule: land possessor has duty to make property reasonably safe or warn licensees of concealed dangers

• no duty to look for dangers
• must exercise reasonable care in conducting activities on land

Question 64

invitees

Answer 64

someone who comes onto land for material or economic purpose (land held open to public or business visitor)

duty of reasonable care to inspect property, discover unreasonably dangerous conditions, and take reasonable steps to protect invitee from them

non-delegable duty: cannot avoid the duty by assigning care of the property to an independent contractor

Question 65

landlord/tenant

Answer 65

landlord must:

• maintain safe common areas
• warn of hidden dangers, and
• repair hazardous conditions

Question 66

off-premises victim

Answer 66

land possessor generally not liable for injuries resulting from natural conditions (except trees in urban areas)

artificial conditions: must prevent unreasonable risk harm to persons not on premises

must exercise reasonable care in conducting activities on land

Question 67

res ipsa loquitur

Answer 67

*re breach analysis in negligence

in some cases, circumstantial evidence of negligence is sufficient evidence of negligence

traditional elements:

1. accident was of a kind that doesn’t ordinarily occur in the absence of negligence
2. caused by agent/instrumentality within exclusive control of D
3. not due to any action on part of P

modern trends:

• medical malpractice: all Ds are jointly & severally liable unless they can exonerate themselves
• products liability: ignore exclusivity requirement when clear defect originated upstream of package’s wrapping
• comparative fault jurisdiction: loosely apply third element

R3: accident is type that ordinarily happens as result of negligence of class of acts & D is member of that class

procedural effect: allows case to go to jury, avoids motion to dismiss in favor of D, jury can infer negligence but need not

Question 68

remedies

Answer 68

D is liable for full extent of Ps injuries, even if unusual or unforeseeable (eggshell P)

1. compensatory damages
   a. actual damages to make P whole again
   * P who suffers physical injury can recover for emotional damages (parasitic damages)
   b. P must take steps to mitigate damages
   c. personal injury:
   - medical expenses (past & future)
   - lost income & reduced earning capacity
   - pain & suffering (past & future)
   d. property damages
   - can recover diff in market value of property before and after injury, or
   - cost of repair or replacement value
2. collateral source rule
   a. traditional rule: benefits or payments to P from outside sources are not credited against liability of any tortfeasor (& not admissible at trial)
   b. modern trend: eliminate collateral source rule to avoid double recovery
3. punitive damages: to punish & deter future conduct
   - available if D acted willfully, wantonly, recklessly, or with malice
   - must be within single-digit ratio of compensatory damage

Question 69

other negligent special rules of liability

Answer 69

wrongful death:

• brought by decedent’s spouse or representative to recover losses suffered by spouse/representative as result of decedent’s death
• includes loss of economic support & loss of consortium

survival action:

• brought by rep of decedent’s estate on behalf of decedent for claims decedent would’ve had at time of his death
• includes damages from personal injury or property damages

wrongful life:

• claim by child for D’s negligent failure to properly perform contraceptive procedure/diagnose congenital defect
• limited to special damages attributable to the disability

wrongful birth:
-claim by parents for Ds negligent failure to properly perform a contraceptive procedure or diagnose a congenital defect

Question 70

negligence immunities

Answer 70

federal torts claims act:

• expressly waives immunity and allows federal gov to be sued for certain kinds of torts
  exceptions: fed gov maintains immunity for discretionary functions & traditional gov activities

state govs & municipalities:
-immunity applies to government functions (police, court system), but does not apply to proprietary functions (private company - utilities, parking lots)

gov officials:

• immunity applies to discretionary functions, but not ministerial functions
• westfall act: precludes personal liability on part of federal employee under state tort law

Question 71

joint & several liability

Answer 71

two or more Ds each liable for single and indivisible harm to P, each subject to liability to P for the entire harm (even if jury apportions each D diff percentage of fault)

*contrast with pure several liability where a tortfeasor is generally only liable for his comparative share of the plaintiff’s damages.

Question 72

intentional misrepresentation (fraud)

Answer 72

1. false representation about material fact (concealment counts)
   - generally no duty to disclose, but affirmative duty if fiduciary relationship, other party likely to be misled based on Ds previous statements, or D is aware other party is mistaken
2. scienter: D knows representation is false or acted with reckless disregard for its falsehood
3. intent: D intends to cause P to act in reliance on misrepresentation
4. causation: misrepresentation caused P to act or refrain from acting
5. justifiable reliance: not justifiable if facts are obviously false or clear D was stating opinion
6. damages: P must prove actual, economic, pecuniary loss
   - nominal damages not available
   - recovery is “benefit of the bargain” (some allow out of pocket losses)

general damages: Under the “loss of bargain” measure, which is contract-based, the buyer is entitled to the difference between the value of what he was promised and the market value of what he received.

Under the “out of pocket” measure, which is tort-based, the buyer is entitled to the difference between the amount that he paid and the market value of what he received. This measure seeks to compensate the buyer for the loss suffered.

specific damages: In a fraud action, the plaintiff can also recover special damages that were caused by the defendant, but they must be specially pled. In a contract action, they are referred to as consequential damages, and require certainty, foreseeability at the time of contracting, and must be unavoidable.

Question 73

negligent misrepresentation

Answer 73

1. D provided false info to P
2. as a result of Ds negligence in preparing the information
3. during the course of a business or profession
4. causing justifiable reliance, and
5. P is either in a contractual relationship with D or a third party known by D to be a member of the limited group for whose benefit the info is supplied

• negligence defenses can be raised
• P can recover reliance & consequential damages if proven with sufficient certainty

Question 74

intentional interference with a contract

Answer 74

1. valid contract btw P and third party (not terminable at will)
2. D knew of contractual relationship
3. D intentionally interfered with K, resulting in breach &
4. breach caused damages to P

*D’s conduct must exceed the bounds of fair competition & free expression

Question 75

interference with a prospective economic advantage

Answer 75

D intentionally interferes with a prospective business relationship or benefit btw D and third party, in the absence of a contract

same elements as intentional interference with K but conduct must be wrongful

Question 76

misappropriation of trade secrets

Answer 76

• P owns info that is not generally known (valid trade secret)
• P took reasonable precautions to protect it, and
• D acquires secret by improper means

Question 77

injurious falsehoods

Answer 77

trade libel: need not necessarily damage business’s reputation
-publication of a false or derogatory statement with malice relating to Ps title to his business, the quality of his business, or the quality of its products, and causing special damages or damage to business relationships

slander of title:
-publication of false statement, derogatory to Ps title, with malice, causing special damages, & diminishes value in the eyes of third parties

Question 78

wrongful use of the legal system

Answer 78

1. malicious prosecution:
   - intentionally and maliciously institutes or pursues a legal action for an improper purpose, without probable cause, and action is dismissed in favor of the person against whom it was brought
2. abuse of process:
   - D sets in motion a legal procedure in the proper form but has abused it to achieve some ulterior motive
   - conduct must also cause damages

Question 79

market share liability, alternative causation, concert of action doctrine

Answer 79

Under the market share liability doctrine, if the plaintiff’s injuries are caused by a fungible product and it is impossible to identify which defendant placed the harmful product into the market, the jury can apportion liability based on each defendant’s share of the market.

Under the alternative causation doctrine, if the plaintiff’s harm was caused by (i) one of a small number of defendants, (ii) each of whose conduct was tortious, and (iii) all of whom are present before the court, then the court may shift the burden of proof to each individual defendant to prove that his conduct was not the cause in fact of the plaintiff’s harm.

Under the concert of action doctrine, if two or more tortfeasors were acting pursuant to a common plan or design and the acts of one or more of them tortiously caused the plaintiff’s harm, then all the defendants will be held jointly and severally liable.