Torts Flashcards
Key principle #1: Negligence is by far the most highly tested topic on Torts MEE questions. Be familiar
with the general standard of care (to act as a reasonable person would) and when the general standard
changes.
Introduction: Start your essay as follows: “In any negligence action, a plaintiff must show that the
defendant owed the plaintiff a duty to conform his conduct to a standard necessary to avoid an unreasonable risk of harm to others, that the defendant’s conduct fell below the applicable standard of care, and that the defendant’s conduct was both the cause in fact and the proximate
cause of the plaintiff’s injuries.”
Claims against children:
a child owes the duty of care of a “hypothetical child” of similar age,
intelligence, and experience, acting under similar circumstances.
Exception—adult activity: if the child is engaged in adult activity—i.e., one which is “normally undertaken only by adults, and for which adult qualifications are required”
(e.g., driving a car, tractor, motorcycle, motor scooter, snowmobile, etc.)—then the child will be held to the same standard of care as a reasonably prudent adult engaged in such activity.
Exception—tender years: some states recognize the tender-years doctrine in which a child less than seven years of age cannot be found negligent.
Premises liability:
the standard of care owed depends on the legal status of the plaintiff.
Undiscovered trespasser: Definition: One who comes onto the land without
permission or privilege who the premises possessor does not know about. Rule:
undiscovered trespassers are not owed any duty of care.
Discovered trespasser: Definition: A trespasser that the premises possessor knows or should know of. Rule: the possessor must warn or make safe any unreasonably dangerous concealed artificial conditions that the landowner knows of.
Attractive nuisance:
The premises possessor is liable if (1) he knows or has
reason to know that children are likely to trespass, (2) the condition is one
which he knows or should know involves an unreasonable risk of death or serious bodily harm, (3) the children because of their youth do not discover
the condition or realize the risk involved, (4) the burden of eliminating the danger is slight compared with the risk involved and the benefit to the
possessor, and (5) the possessor fails to exercise reasonable care to protect the
children. This doctrine applies only if the child is engaging in an activity
appropriate for children (i.e., not an “adult activity”).
Licensee:
A social guest who has permission to enter the land
but does not confer an economic benefit on the possessor of land.
The landowner must warn or make safe all concealed dangers (artificial or not, unreasonably dangerous or not)
that the landowner knows of.
Note: Most MEE answers state that a premises possessor owes a licensee the duty to “reveal hidden dangers of which the landowner knows or has reason to know and which the entrant is unlikely to discover.”
This is very similar to the invitee standard, below, but you should still state it on the MEE.)
Invitee:
Definition: enter either to confer an economic benefit (e.g.,
customers or employees of a store) or enter land that is open to the public at large (e.g., church, museum, etc.).
Rule: The premises possessor must “warn or make safe all dangers that the landowner knows or should know of. The premises possessor has a
duty to inspect!”
Negligence per se:
discuss this doctrine when you see a statute that sets the standard of care.
A plaintiff can sue under a theory of negligence per se when the plaintiff can show three elements: (1) the defendant violated a “statute” without excuse,
2) the plaintiff was in the @class of people” that the statute was trying to protect, and (3) the plaintiff received the injury that the “statute was trying to prevent”
. If a plaintiff can establish the above elements, he has offered conclusive proof of duty and breach. (He must still
prove cause and harm.)
Harm: Eggshell-skull rule:
A defendant takes his victim as he finds him. The plaintiff with an “eggshell skull” who suffers damages greatly in excess of those that a normal victim would suffer is entitled to recover fully for his injuries.
negligent infliction of emotional distress :
This may be applicable when the defendant is negligent and the plaintiff has not sustained any actual physical trauma to his body.
There generally must be a physical manifestation of emotional distress (e.g., heart attack).
Some jurisdictions only allow recovery if the plaintiff was “within the zone of danger.”
Bystander - Others allow it when the plaintiff was closely related to the victim, was located near the scene of the accident, and
suffered shock resulting from “the sensory and contemporaneous observance of the
accident.” In almost all jurisdictions, mere receipt of news relating to an accident does
not suffice.
- Damages :
Comparative negligence—majority law: The trier of fact (i.e., the judge or jury)
apportions fault among the parties. The amount of damages apportioned to the plaintiff because of the plaintiff’s negligence is subtracted from the total damages awarded by
the jury. This is known as pure comparative negligence. There are some jurisdictions in which apportionment is not available unless the jury concludes that the plaintiff is less than 50% at fault. In these “partial” or “modified” comparative negligence jurisdictions, if the jury concludes that the plaintiff was 50% or more at fault, he cannot recover.
(MEE sample answers do not typically name the doctrines “pure” or “partial,” they
simply describe them.)
Compare with contributory negligence: This is a common law doctrine that states if the jury finds that the plaintiff’s negligence contributed to his injuries to any degree, the plaintiff cannot recover. Most states have abandoned this doctrine.
Key principle #2: The two intentional torts that have been tested on the MEE are battery and false
imprisonment. Intentional torts are not heavily tested.
Battery: An act with intent to cause a harmful or offensive contact or imminent apprehension of that
contact and a harmful or offensive contact directly or indirectly results. Note that the primary difference between an assault and a battery is the harm suffered (for an assault, the plaintiff suffers
imminent apprehension).
- False imprisonment: an act with intent to confine or restrain a person to a bounded area, actual
confinement occurs, and the plaintiff knows of the confinement or is hurt by the confinement.
Consent:
Consent: Consent is a defense to an intentional tort. Consent can be express or implied.
Key principle #3: Vicarious liability is heavily tested. Understand when an employer is liable and when the
employer is able to seek indemnification for damages paid to the plaintiff.
Employer/employee: Employers are vicariously liable for torts of their employees if the torts are
committed within the scope of employment. (This is called respondeat superior.) Intentional torts
are usually outside the scope of employment unless they were done for the purpose of serving the employer or if they were foreseeable.
Direct Liability :
Indemnification :
Direct liability: the employer can be directly liable for his own negligence if, for example, he fails to
supervise employees or otherwise acts negligently in hiring, firing, or entrustment.
- Indemnification: Indemnification is full reimbursement for damages paid to the plaintiff. This is when one defendant can seek 100% of the damages from the other defendant. This usually occurs when the paying defendant was not at fault in causing the plaintiff’s injuries, and the non-paying defendant was at fault. For example, an employer who is liable based solely on the principle of respondeat superior may seek indemnification from the employee who was negligent.
