Torts

Question 1

Negligence Per se elements

Answer 1

Statute—negligence per se: If a defendant violates a statute and the plaintiff was in the class of people that the statute was trying to protect and the plaintiff received the injury the statute was trying to prevent, duty and breach are established.

Tip: the plaintiff still must prove causation and harm

Question 2

What is the use in custom establishing duty

Answer 2

Custom: Custom generally is evidence of duty of care. In professional malpractice cases, it is conclusive evidence

Question 3

Duty to control third parties:

Answer 3

Generally, there is not a duty to control the conduct of third parties. However, one has a duty to act reasonably to control a third party if one has a special
relationship with the third party (e.g., an owner and the occupiers of his land, a prison and its prisoners, or a mental institution and its patients).

Question 4

Traditional Rule for Duty owed to trespassers ALL of them (4)

Answer 4

• Undiscovered trespasser (a person the premises possessor does not or should not know of):
No duty of care is owed. However, the premises possessor cannot act wantonly or willfully.

• Discovered trespasser (a person the premises possessor knows or should know is trespassing):
The premises possessor must warn of or make safe unreasonably dangerous artificial conditions that it knows of.

• Licensee (social guest):
: to warn of concealed dangers that are known or should be obvious and use reasonable care in conducting activities

• Invitee (one that enters a public place or business):
to inspect and discover unreasonably dangerous conditions and protect the invitee from them

Tip: this is the only case where a duty to inspect is imposed on the premises possessor.

Question 5

Attractive Nuisance Elements

Answer 5

An artificial condition exists in a place where the owner knows or should know that children are likely to trespass;

• The condition imposes and unreasonable risk of serious bodily injury;
• The children cannot appreciate the danger due to their youth;
• The burden of eliminating the danger is slight compared with the risk of harm; and
• The land possessor failed to exercise reasonable care to protect children

Question 6

Modern Factors of Cost benefit analysis for breach

Answer 6

Modern factors for determining breach (cost-benefit analysis):

1) The foreseeability of harm;
2) The severity of harm; and
3) The burden on the defendant to prevent the harm

Question 7

Substantial Factor Rule for Causation

Answer 7

• Arises when there are multiple causes of the harm and each alone would have been a factual cause of the injury
• The conduct of each defendant is a cause in fact if it was a substantial cause of the injury

Question 8

Multiple Causes Actual Causation

Answer 8

Multiple causes: If there are two or more defendants, use the substantial factor test. If a defendant’s breach was a substantial factor in causing the harm, the defendant is liable

Question 9

Alternative causes for actual causation

Answer 9

Alternative causes: The plaintiff must show that all potential
defendants are joined in the lawsuit and all defendants are negligent. The burden then will shift to each defendant to show its breach of duty was not the actual cause of the harm.

Question 10

What is an intervening cause

Answer 10

Intervening cause—an outside force that contributes to the plaintiff’s harm after thedefendant’s act

• If foreseeable, will not cut off defendant’s liability
• If unforeseeable, it is a superseding cause and cuts off the defendant’s liability

Question 11

Comparative Negligence and the 2 kinds

Answer 11

Comparative negligence: a judge or jury compares the plaintiff’s fault with the defendant’s fault and assigns percentages to each.

Pure comparative negligence: The plaintiff can recover no matter how negligent he is. His damages simply are reduced by his percentage of fault. Tip: this is the default on the MBE unless otherwise stated.

Partial (modified) comparative negligence: if the plaintiff was more at fault than the defendant (or in some states, if the plaintiff and defendant were equally at fault), the plaintiff cannot recover.

Question 12

Contributory Negligence

Answer 12

Contributory negligence: The plaintiff cannot recover if he was even a little bit negligent unless the defendant had the last clear chance to avoid the injury.

(Do not apply this doctrine on the MBE unless you are told to!)

Question 13

When is a principal liable for 3rd parties like independent contractors?

Answer 13

A principal is generally not liable for the torts of his independent contractors. However, a principal is liable if the
duty is nondelegable or the activity is inherently dangerous. The principal also may be liable for his own negligence in hiring, firing, or supervising the contractor.

Tip: a duty generally is nondelegable if it involves safety.

Question 14

Are employers liable for employee torts?

Answer 14

Employers or principals are vicariously liable for the torts of their employees or agents that are committed in the
scope of employment.

(Note: intentional torts usually are outside the scope of employment unless they were foreseeable or they were committed for the purpose of serving the employer.)

If an employer/principal is found liable under this theory, it may seek indemnity (i.e., full payback) from its employee.

Question 15

What is Joint and Several Liability

Answer 15

In a joint and several liability jurisdiction, the plaintiff may recover all of his damages from any single defendant
(and the defendant may seek contribution from a codefendant). In a several liability jurisdiction, each defendant is liable only for his percentage of fault.

Tip: apply joint and several liability on the MBE unless told otherwise

Question 16

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (NIED) Elements

Answer 16

(1) the defendant is negligent,
(2) the plaintiff suffers physical symptoms from its emotional distress, and
(3) the plaintiff is either in the zone of danger or the plaintiff witnesses a negligent injury to a person closely related to the plaintiff.

Note: There are special cases where physical symptoms are not necessary to prove. These include cases where a corpse is mishandled and cases involving erroneous reports of a relative’s death to a plaintiff.

Question 17

Zone of Danger under NIED

Answer 17

Plaintiff must have been within the zone of danger of the threatened physical impact

Must have some physical manifestation of the emotional distress

Question 18

When do Bystanders recover in NEID

Answer 18

o A bystander who is outside the zone of danger may recover for NIED if the plaintiff:

 Is closely related to a person harmed by the defendant’s negligence;

 Was present at the scene of the injury; and

 Personally observed the injury.

Editorial Note 1: For both zone of danger and bystander NIED claims, the plaintiff must experience emotional distress as a result of the defendant’s negligence, and that distress must be manifested by physical symptoms.

Question 19

Abnormally dangerous activities definition and elements

Answer 19

STRICT LIABILITY
An abnormally dangerous activity is one that creates
a foreseeable risk of serious harm even when reasonable care is exercised, and the activity is not a matter of common usage in the community.

Tip: examples include blasting, mining, explosives, etc.

Abnormally dangerous activity—high risk of harm, that is not commonly found in thecommunity, which has a risk that cannot be eliminated with due care

1. Causation
   Note 1: The causation analysis is the same analysis as discussed above under negligence.

a. Actual Cause

Plaintiff must show that but for defendant’s act, plaintiff’s injury would not have occurred

b. Proximate Cause
Plaintiff must show that her injuries were the foreseeable result of defendant’s conduct

2. Damages
   Plaintiff must prove actual injury and not just economic loss
3. Defenses—Assumption of the Risk
   Recovery may be barred or reduced if plaintiff voluntarily and knowingly assumed the risk.

Question 20

Wild animals tort

Answer 20

Strict liability applies to wild animals (e.g., bear, tiger, etc.)

• Also applies to domestic animals if the owner knows or has reason to know of a dangerous
propensity

• Plaintiff must also show causation and damages

A defendant is strictly liable for foreseeable harms caused by wild animals.

Examples of wild animals include: skunks, bears, and monkeys.

Tip: strict liability is not available to a trespasser (the trespasser can sue under a theory of negligence but not strict liability).

Tip: Negligence must be shown if the harm is caused by a domestic animal (i.e., a pet or farm animal). Examples include dogs, cats, sheep, honey bees, rabbits, horses, and cows.

Question 21

Manufacturing defect Tort

Answer 21

STRICT LIABILITY
the defendant must be a merchant. The product must be defective at the time it left the defendant’s hands.

the product departs from its intended design and it is more
dangerous than expected.

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

 The test is whether the product conforms to the defendant’s own specifications.

Question 22

Design defect Tort

Answer 22

Strict Liability

Consumer-expectation test—plaintiff must prove that the product is dangerous beyond the expectation of an ordinary consumer

 Risk-utility test—plaintiff must prove that a reasonable alternative design that is economically feasible was available to defendant, and failure to use that design rendered the product unreasonably dangerous.

Exam Tip 6: Look for facts in the exam question about the availability of alternative designs and the cost of these alternative designs.

the product comes out exactly as the manufacturer intended.

However, there is an alternative design that is safer, practical, and cost-effective

Question 23

Failure to warn tort

Answer 23

Strict Liability

Exists if there were foreseeable risks of harm, not obvious to an ordinary user of theproduct, which could have been reduced or avoided by providing reasonable instructions or
warnings

Exam Tip 7: Read the exam facts carefully. The defendant might provide a warning about one type of harm, but it is insufficient to warn about the type of harm that actually occurred.

Question 24

Causation for Products Liability

Answer 24

3. Causation
   a. Actual Causation
   The product must have been defective when it left defendant’s control and the defect was the actual cause of the harm.

b. Proximate Causation
 The defect causing the plaintiff’s injuries occurred when the product was being used in an intended or reasonably foreseeable way.

 A defendant may still be liable if the plaintiff misuses the product, as long as the misuse
is foreseeable.

Question 25

Proper Defendants for Products Liability?

Answer 25

Proper defendant—includes manufacturer, distributor, and retailer

Question 26

Negligence Products Liability

Answer 26

Negligent Products Liability

Exam Tip 8: After you analyze strict products liability, you should always discuss negligent products liability.

This analysis is the same as a typical negligence analysis in relation to the product

Question 27

Defenses to Products Liability

Answer 27

a. Contributory Fault

 The plaintiff’s contributory fault is generally not a defense to a strict products liability action.

 If the plaintiff knows of the defect and unreasonably uses the product anyway,contributory fault may be a defense to bar or reduce recovery.

b. Assumption of the Risk
Recovery may be barred or reduced if plaintiff voluntarily and knowingly assumed the risk of
using the product

Question 28

Defamation elements with Explanations

Answer 28

A. Defamation
• A plaintiff may bring an action for defamation if the defendant’s defamatory language:

o Is of or concerning the plaintiff;

o Is published to a third party who understands its defamatory nature; and

o Damages the plaintiff’s reputation.

1. Defamatory Language
   The language diminishes the respect, esteem, or goodwill towards plaintiff.
2. Of or Concerning Plaintiff
   A reasonable person must believe that the defamatory statement refers to this particular plaintiff and holds him up to scorn or ridicule in the eyes of a substantial number of respectable members of the community.
3. Publication
   Statement must be communicated to a third party
4. Damage to Plaintiff’s Reputation

o Libel (written statements)—general damages are presumed
o Slander (oral statements)—damages are not presumed

Question 29

Constitutional Defamation Requirements, WHEN do they apply?

Answer 29

The Constitutional defamation requirements apply if:

1) The plaintiff is a public official (e.g., politician) or public figure (e.g., celebrity); or
2) The plaintiff is a private individual, but the statement involves a matter of public concern

Question 30

Constitutional Requirements for Defamation, explained

Answer 30

a. First Constitutional Requirement: Falsity

 Plaintiff must prove that the statement is false; and

 If plaintiff is a public official or figure, must also prove that the defendant acted with actual malice

• Malice—defendant either had knowledge that the statement was false or acted with reckless disregard as to the truth or falsity of the statement

 If the plaintiff is a private individual and the defendant’s statement involves a matter of public concern, the plaintiff is required to prove that the defendant acted with negligence or actual malice.

b. Second Constitutional Requirement: Limits on Damages

 A public official or figure or a private individual and matter of public concern—plaintiff must prove actual damages

 A private individual who can show actual malice may also recover punitive damages.

Question 31

the 4 defenses to defamation

Answer 31

Defenses

1. Consent
2. Truth
3. Absolute Privilege
   o Used for remarks during judicial or legislative proceedings, between spouses, or in required
   publications
   o Cannot be lost
4. Qualified Privilege
   o Affects an important public interest or is in the interest of defendant or a third party
   o Can be lost if exceeds the scope of the privilege or the speaker acted with malice

Tip: common examples of when a defendant may have a qualified privilege is when he is speaking as a past employer of the plaintiff for a job reference or if he is speaking to a police officer investigating a crime.

Note: injunctions generally are not granted in defamation cases as they are viewed as prior restraints
that interfere with First Amendment rights

Question 32

Elements for defamation of public figure?

Answer 32

Public figure cases: If the plaintiff is a public figure, he also must prove that the statement is false and that the
defendant acted with malice.

Tip: Memorize the definition of malice for public figure cases. Malice is present when the defendant knows the statement is false or acts with reckless disregard as to whether it is true or
false

Question 33

Actual malice Defamation definition

Answer 33

• Malice—defendant either had knowledge that the statement was false or acted
with reckless disregard as to the truth or falsity of the statement

Question 34

Damages in slander and Libel cases

Answer 34

In libel cases (cases where the defamatory statement is written or recorded), damages are presumed.

In slander cases, damages are presumed if the slander is in one of the four slander per se (CLUB) categories:

(1) committing a crime of moral turpitude,
(2) suffering from a loathsome disease,
(3) unchastity if the plaintiff is a woman, or
(4) something that reflects badly on the plaintiff’s business or profession.

Question 35

INVASION OF PRIVACY (FAID) Torts list

Answer 35

False Light
Appropriation
Intrusion upon seclusion
Disclosure of private facts

Question 36

False light privacy tort

Answer 36

Plaintiff must prove that defendant published facts about plaintiff or attributed views or actions to plaintiff that place him in a false light and are highly offensive to a reasonable person

Example 6: A newspaper using a photo of a celebrity and falsely stating thatthe photo was taken at an objectionable event

Question 37

Appropriation privacy tort

Answer 37

o The unauthorized use of plaintiff’s name, likeness, or identity for defendant’s advantage
(commercial or otherwise)

o Plaintiff must prove lack of consent and injury.

Example 5: A celebrity’s photo is used in an advertisement without being compensated and without the celebrity’s permission.

defendant uses the plaintiff’s name or likeness in an unauthorized way to advertise a product.

Question 38

Intrusion upon Seclusion

Answer 38

Defendant’s acts of intrusion into plaintiff’s private affairs are objectionable to a reasonable person

Defendant intentionally pries or intrudes into a private place in a way that would be offensive to a reasonable person.

Question 39

Public Disclosure of Private Facts

Answer 39

Actionable if the publication would be highly offensive to a reasonable person, and is not of legitimate concern to the public

defendant widely disseminates or publishes private information about the plaintiff that would be highly
offensive to a reasonable person.

Question 40

Battery

Answer 40

Requires harmful or offensive contact (objective standard) with the plaintiff’s person (or anything connected to it), intent by defendant to cause the touching (transferred intent applies),and causation

Exam Tip 9: The intent requirement is met if the defendant has the desire to bring about the harmful contact OR the defendant engaged in an action knowing that the harm was substantially certain to occur.

Question 41

Assault

Answer 41

Defendant acts with intent to cause a harmful or offensive contact (or imminent apprehension) and an imminent apprehension directly or indirectly results.

Tip: Apprehension does not mean fear. Apprehension is knowledge or anticipation of the impending contact.

Question 42

Intentional Infliction of Emotional Distress (IIED)

Answer 42

Requires extreme and outrageous conduct by the defendant causing severe emotional distress
to plaintiff and intent by the defendant to cause distress.

Tip: The plaintiff does not need to show physical symptoms to prevail. However, the plaintiff must show she suffered “severe emotional distress.”

a. Liability to third parties

 Defendant can be liable if he distresses a member of victim’s immediate family

 Defendant can be liable if he distresses a bystander (not family) if the distress results inbodily injury to the bystander

Question 43

False imprisonment

Answer 43

the intentional confinement or restraint of plaintiff (e.g., physical barriers or force, threats, invalid use of legal authority, duress) for any amount of time.

o There must be no reasonable means of safe escape.

o Actual damages are not necessary if plaintiff was aware of confinement.

a. Shopkeeper’s Privilege (Defense)
If a shopkeeper reasonably suspects plaintiff of stealing, he can detain the plaintiff for a
reasonable amount of time in a reasonable manner.

defendant acts with the intent to confine or restrain the plaintiff to a bounded area,
actual confinement occurs, and the plaintiff either knows of the confinement or is hurt by it.

Question 44

Shopkeeper’s Privilege (Defense)

Answer 44

a.
If a shopkeeper reasonably suspects plaintiff of stealing, he can detain the plaintiff for a
reasonable amount of time in a reasonable manner.

Question 45

Private necessity

Answer 45

Defendant acts to protect an interest of his own. He is not

liable for a tort, but he still must pay for actual damage caused.

Question 46

On what torts does transferred intent doctrine apply?

Answer 46

A note on transferred intent: intent can transfer for torts involving

assault, 
battery, 
false imprisonment, 
trespass to land, and 
trespass to chattels.

Question 47

Trespass to chattels

Answer 47

. Trespass to chattels (tangible personal property)

o An interference with the plaintiff’s possession of her chattel

o Requires intent to perform the act that interferes with the possession (transferred intent applies), causation, and damages

The damages are the cost to repair the property.

Question 48

Conversion

Answer 48

Requires serious interference with plaintiff’s possession of her chattel, intent to perform the act that interferes with the possession (transferred intent does not apply), causation, and damages.

Conversion: Defendant intentionally interferes with another’s personal property and a serious and substantial harm results. The damages are the fair market value of the property

Question 49

Trespass to land

Answer 49

The physical invasion of another’s land and intent to enter the land or cause physical invasion

defendant physically invades the land of another and intends to be where he is.

Question 50

Private Nuisance

Answer 50

the defendant uses his property in a way that causes a substantial unreasonable interference with the plaintiff’s use or enjoyment of his land.

Tip: Do not take into account the plaintiff’s peculiar use of his land. Ask if the defendant’s use of his land would substantially interfere with an average member of the community’s use and enjoyment of his property.

Question 51

public Nuisance tort

Answer 51

An unreasonable interference with a right common to the general public

Question 52

Public nuisance

Answer 52

Public nuisance: Defendant unreasonably interferes with the health, safety, or morals of a community. In order to successfully sue, the
plaintiff must suffer unique damages.

Question 53

Abating the Nuisance

Answer 53

Abatement (eliminating the nuisance)

1) Private Nuisance

• Reasonable force is permitted to abate the nuisance
• Plaintiff must give notice of the nuisance and defendant must refuse to act before
action can be taken

2) Public Nuisance
 Absent unique injury, public nuisance may be abated only by public authority

Question 54

MISREPRESENTATION tort

Answer 54

(1) There is a material misrepresentation by the defendant,
(2) the defendant knew his statement was false or said it with reckless indifference to the truth,
(3) he had the intent to induce the misrepresentation, and
(4) the plaintiff relied on it and suffered pecuniary damage.

Question 55

INTENTIONAL INTERFERENCE WITH BUSINESS RELATIONS

Answer 55

(1) There is a valid business relationship or expectancy that existed between the parties that the defendant knew of;
(2) the defendant intentionally coerced one of the parties to terminate the relationship, breach a contract, or withhold a business expectancy;
(3) the defendant was not authorized to interfere; and
(4) the interference resulted in damages.