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MBE 1 Misses > Torts > Flashcards

Torts Flashcards

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1
Q

Consent only extends to:

A

Conduct that is the same as, or substantially similar to, the particular conduct agreed to by the plaintiff

*Thus consent is limited to the individual whose conduct was agreed to by the plaintiff

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2
Q

A product is defective by design if:

A

(1) the product’s design is unreasonably dangerous, and

(2) danger could have been mitigated by a feasible alternative design

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3
Q

Consent is not valid and will not serve as a defense if (mistake):

A

(1) Consent was due to substantial mistake, and

(2) D knew about the mistake or caused it by affirmative misrepresentation or fraud

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4
Q

Public disclosure of private facts:

A

The defendant publicized a matter about the plaintiff’s private life that is not of legitimate public interest

*Disclosure of matters concerning public figures and their families is generally not actionable

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5
Q

A seller remains liable for negligence to persons for physical harm caused by an artificial condition on the land that:

A

(1) existed at the time of the sale, and
(2) the seller knew, or should have known, existed and posed an unreasonable risk of harm to such persons

*Liability exists until buyer has had a reasonable opportunity to discover and remedy the condition

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6
Q

Libel

A

(1) D knowingly made a false statement about P OR negligently failed to determine its falsity,
(2) that type of statement would tend to harm the P’s reputation, and
(3) D intentionally or negligently communicated that statement to a third party

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7
Q

Intrusion upon seclusion occurs when:

A

D intentionally intrudes on P’s private affairs in a manner that would be highly offensive to a reasonable person

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8
Q

Trespass to chattels requires:

A

(1) Intentional interference,
(2) with the P’s right to possession by either dispossession or intermeddling, and
(3) P can show actual harm to, or deprivation of the use of, the chattel for substantial time

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9
Q

Superseding cause

A

Unforeseeable intervening cause that breaks the chain of proximate cause

*Negligent intervening acts are FORESEEABLE

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10
Q

Joint and Several Liability

A

Two or more defendants are a factual cause of an indivisible injury or Ds acted with common plan or design

P can recover from any of the Ds individually or all of them jointly

Individual Ds can seek contribution from joint tortfeasors

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11
Q

Res ipsa loquitur

A

(1) Harm would not have occurred if D had used ordinary care,
(2) P is not responsible for the injury, and
(3) Cause of harm was under D’s exclusive control

*Trier of fact may infer the existence of D’s negligent conduct in the absence of direct evidence of such negligence

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12
Q

Negligence Per Se

A

(i) Statute imposes a specific duty for protection of others,
(ii) D neglects to perform the duty,
(iii) D liable to anyone in the CLASS OF PEOPLE intended to be protected by statute for HARMS OF THE TYPE the statute intended to protect against

*Violation excused if reasonable in light of physical disability or incapacity or because D is a child

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13
Q

What is assumption of the risk?

Does assumption of the risk preclude recovery in a negligence action?

A

Unreasonably proceeding in the face of known, specific risk

NO (unless contributory neg), it just reduces recovery

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14
Q

Assault

A

act or threat by D intended to cause apprehension of imminent harm or offensive contact

Assault is an ATTEMPT to commit a battery –> ATTEMPT requires a substantial step toward the commission of a crime, such as solicitation of an innocent agent to engage in criminal conduct, coupled with intent to commit that crime

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15
Q

IIED

A

Intent to cause severe emotional distress OR act with recklessness as to the risk of causing such distress

*Transferred intent does not apply when D intended to commit a different intentional tort

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16
Q

Defamation

A

Slander or Libel

  • If the statement is of a public concern or public figure, P must prove falsity
  • Private P suing on matter that does not involve public concern not required to prove falsity
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17
Q

False Light

A

Publication of facts about P or attributing views/actions to P that place P in a false light objectionable to a reasonable person under the circumstances

  • Truth not always a defense
  • In matters of public interest, P must show malice
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18
Q

Misappropriation

A

Unauthorized use of P’s picture or name for D’s advantage with a lack of consent that cause injury

*some states allow to survive death

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19
Q

Strict Liability - Wild Animals

A

Owner/Possessor liable as long as harm arises from dangerous propensity characteristic of animal or about which owner has reason to know AND for injuries caused by P’s fearful reaction to unrestrained wild animal

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20
Q

Strict Liability - Abnormally Dangerous Animals

A

Owner/Possessor liable if it has reason to know of dangerous propensities abnormal for the animal’s category or species and harm results

Owner/Possessor liable for trespassing pets if owner has knowledge or reason to know of intrusion

Negligence standard applies if pet strays onto public road and contributes to accident there

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21
Q

In a negligence action, does economic loss alone satisfy damages requirement?

A

NO - must prove actual injury

22
Q

Contributory Negligence

Last Clear Chance

A

P’s fault is complete bar to recovery

P may mitigate legal effect of own fault if D had last clear chance to avoid injuring P

23
Q

Pure Comparative Fault

A

P’s damages are reduced by proportion that P’s fault bears to total harm

24
Q

Partial Comparative Fault

A

If P is more at fault than D, P recovers nothing

If P is less at fault than D’s combined, P’s recovery is reduced by P’s percentage of fault

25
Q

Is assumption of the risk recognized as a separate defense in comparative negligence jurisdiction?

A

NO! So no separate jury instruction is given for assumption of the risk

26
Q

Pure Several Liability

A

P can only recover from a specific D the percentage of fault that is attributable to that specific D

27
Q

Negligent Entrustment

A

D knows or should have known of the dangerous propensity of the individual entrusted

28
Q

Conversion

A

(1) Intentional act,
(2) interferes with P’s right of possession,
(3) so serious that it deprives P of the use of the chattel, and
(4) results in damages

29
Q

Attractive nuisance doctrine

A

i) Artificial condition where land possessor knows or has reason to know children are likely to trespass;
ii) knows or has reason to know the condition poses an unreasonable risk of death or serious bodily injury to children;
iii) the children, because of their youth, do not discover or cannot appreciate the danger;
iv) Utility to the land possessor of maintaining the condition and the burden or eliminating the danger are slight compared to the risk of harm presented to children; and
v) the land possessor fails to exercise reasonable care to protect children from harm

30
Q

NIED

A
  • Zone of Danger: P was within the zone of danger and the threat of physical impact caused emotional distress
  • Bystander: P outside zone of danger can recover if: (1) closely related to the person injured, (2) present at the scene, and (3) personally observed or perceived the injury
  • Special relationship: no threat of physical impact or physical symptoms required (mishandling a corpse)
31
Q

Liability of employer for employee’s torts

A

Occurs when employer has a right to control the means and methods of employee

  • liable for torts within the scope but not liable for intentional torts unless force was inherent to the job
  • detour (minor): liable
  • frolic (substantial): not liable
32
Q

Learned Intermediary

A

Manufacturer of prescription drug or medical device typically satisfies duty to warn by warning prescribing physician of problems with the drug/device, unless:

(i) the manufacturer knows drug/device will be dispensed without personal intervention or evaluation of a healthcare provider, or
(ii) in the case of birth control pills

33
Q

Private Nuisance

A

Substantial and unreasonable interference with another’s use or enjoyment of his land

  • Must be offensive to average reasonable person in community
  • Compensatory damages for property damage, personal injury, emotional distress, deprivation of use, financial loss
  • Punitive damages if D acted intentionally, willfully, or negligently
34
Q

Public Nuisance

A

Unreasonable interference with a right common to the general public

*Private citizen suing must show they are suffering from a harm different in kind from the general public

35
Q

False Imprisonment:

A

(1) A person INTENDS to confine another to a bounded area,
(2) Confinement occurs, and
(3) the other is aware of OR harmed by the confinement

36
Q

Slander

A

(i) D’s defamatory language (knowingly or negligently),
(ii) is of or concerning the P,
(iii) is published to a third party who understands its defamatory nature, and
(iv) it damages the P’s reputation (special damages or slander per se)

Public concern: P must prove D’s fault

Public Figure: P must prove actual malice

37
Q

Punitive damages may be available if D’s conduct was:

A

Willful or wanton

38
Q

An intellectually disabled person is presumed to have:

A

Average mental abilities and the same knowledge as an average member of the community

39
Q

Under negligence products liability theory:

A

failure to exercise reasonable care in the inspection or sale of a product constitutes breach of duty

40
Q

Manufacturing defect

A

A deviation from what the manufacturer intended the product to be that causes harm to P

Test: whether the product conforms to D’s own specifications

Commercial suppliers are STRICTLY LIABLE for manufacturing defects

41
Q

Defect Due to Failure to Warn

A

A product is defective due to inadequate warnings or instructions when:

(i) the product poses a foreseeable risk of harm, and
(ii) reasonable instructions or warnings by the commercial supplier could have reduced the risk

42
Q

D engaged in an abnormally dangerous activity may be liable for injuries or property damage caused by the activity. An abnormally dangerous activity is:

A

(1) not commonly engaged in, and (2) presents a significant and highly foreseeable risk of physical harm even when reasonable care is exercised

43
Q

Defamatory statement towards a group

A

Generally, no member of the group can recover for defamation UNLESS (1) the group is so small that an individual could reasonably determine the speaker was referring to that individual, and (2) the circumstances of publication would cause a reasonable person to conclude the statement refers to that member

44
Q

When multiple forces combine to cause the P’s injury and any one alone would have been sufficient to cause the injury

A

the conduct likely was a substantial factor - thus each D is an actual cause of the injury

*P has burden of proving by preponderance that each D’s actions were an actual and proximate cause of the claimed injury

45
Q

Is a homeowner strictly liable to a trespasser who is injured by a wild animal?

A

Generally no, unless the injuries are caused by a vicious watchdog

46
Q

Strict liability and unrestrained wild animals

A

Strict liability applies to an injury caused by a P’s fearful reaction to the sight of an unrestrained wild animal, in addition to injuries caused directly be the wild animal

47
Q

Trespass to land

A

Defendant’s intentional act causes a physical invasion of the land of another

*Mistake of fact is not a defense because defendant need not know that the land belongs to another

48
Q

Strict Products Liability

A

(1) Product was defective,
(2) Defect existed when it left D’s control, and
(3) Defect caused P’s injury when the product was used in a reasonably foreseeable way

49
Q

Private Necessity

A

A person who enters upon another’s property or interferes with another’s personal property due to private necessity must still pay for actual damages caused

50
Q

Is a claim for purely economic loss allowed under strict products liability theory?

A

NO

MBE 1 Misses (7 decks)

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