Torts

Question 1

Who is a commercial supplier?

Answer 1

One in the business of manufacturing, distributing, or selling the type of defective product that harmed the plaintiff

Question 2

When is a product defective for failure to harm?

Answer 2

If (1) the product posed a foreseeable and obvious risk of harm, and (2) that risk could have been reduced or eliminated by providing reasonable warnings or instructions

Question 3

Commercial supplier

Answer 3

Must provide reasonable instructions or warnings about any foreseeable and unobvious risk posed by its product. Reasonableness is determined by (1) the content and comprehensibility of the warnings or instructions, (2) the intensity of the warnings or instructions, and (3) the characteristics of the expected user groups.

Question 4

Battery

Answer 4

A defendant is liable for battery if (1) he intends to cause contact with the plaintiff’s person, (2) the defendant’s affirmative conduct causes such contact, and (3) the contact causes bodily harm or is offensive to the plaintiff. However, defendant not liable for battery if the plaintiff consented to such contact.

Question 5

When does “presumed consent” exist?

Answer 5

When (1) under prevailing social norms, the defendant is justified in engaging in the conduct in the absence of the plaintiff’s actual or apparent consent, and (2) the defendant has no reason to believe that the plaintiff would not have actually consented had the defendant requested the plaintiff’s consent

Question 6

A prima facie case of fraud (i.e. intentional misrepresentation) is establish by proof of the following elements

Answer 6

(1) D knowingly and recklessly misrepresented a material fact with the intent to induce the plaintiff’s reliance; and (2) the P justifiably relied on the misrepresentation and suffered pecuniary (i.e. financial) loss as a result.

Question 7

Strict products liability claim requires proof of the following:

Answer 7

(1) that D was a commercial seller (eg, manufacturer), (2) that the product was defective at the time it left the D’s control, and (3) that the defect caused the P physical harm (eg, bodily harm)

Question 7

Private nuisance

Answer 7

Thing or activity that substantially and unreasonably interferes with another individual’s use or enjoyment of real property.

NOTE – to have standing to sue for private nuisance, the plaintiff must have some possessory interest in that property.

Question 8

What must a plaintiff prove in a suit for libel?

Answer 8

(1) The defendant knowingly made a false statement about the plaintiff OR negligently failed to determined its falsity (i.e., failed to use reasonable care); (2) that type of statement would tend to harm the plaintiff’s reputation; and (3) the defendant intentionally or negligently communicated that statement to a third party.

If the plaintiffs fail to present legally sufficient evidence to support all these elements at trial (i.e. no reasonable jury could find in P’s favor), the court should grant the defendant’s motion for DV

Question 9

Does libel (written defamation) require proof of special harm (i.e. monetary loss)?

Answer 9

No, no special harm must be proven.

Question 10

Does slander require proof of special harm?

Answer 10

Yes

Question 11

Joint and Several Liability
** DEFAULT RULE ON MBE **

Answer 11

Plaintiff can recover full damages from either or both defendants (however, plaintiff cannot recover twice)

Question 12

Pure comparative negligence
** DEFAULT RULE ON MBE **

Answer 12

A plaintiff can recover no matter how at fault she is. Her damages will simply be reduced by her percentage of fault

Question 13

Are commercial sellers (i.e., manufacturers, wholesalers, and retailers) strictly liable for harm caused by defective products that they sell?

Answer 13

Yes.

Question 14

Res Ipsa Loquitur

Answer 14

Defendant’s negligence can be inferred when (1) P suffered a type of harm that is usually caused by negligence of someone in D’s position and (2) the evidence tends to eliminate other potential causes of that harm.

Question 15

What is libel?

Answer 15

Defamation in words written, printed, or otherwise recorded in permanent form.

Question 16

What does a libel claim require proof of?

Answer 16

(1) That the defendant knowingly made a false statement about the plaintiff or negligently failed to determined its falsity; (2) that the statement was defamatory, meaning that the statement would have a general tendency to harm the plaintiff’s reputation; and (3) that the defendant intentionally or negligently communicated the statement to a third party.

Once proved, a plaintiff can recover general damages that compensate the plaintiff for harm to the plaintiff’s reputation.

Question 17

Can reputational harm be presumed for libel?

Answer 17

Yes, because it is more permanent and more easily spread than slander (i.e. spoken defamation)

Question 18

False imprisonment

Answer 18

Unlawful confinement of a person without consent.

NOTE — the confinement is unlawful unless it is specifically authorized by law or consented to by the victim. Consent is only effective if it was freely given (i.e. without force or fraud) and the victim had the capacity to consent.

DEFENSE — Although mistake of fact is a defense to false imprisonment (and other general intent crimes), it is only a defense if the mistake was honest and reasonable.

Question 19

When is an activity abnormally dangerous?

Answer 19

When it is (1) uncommon in the community; and (2) presents a foreseeable and highly significant risk of physical harm that cannot be mitigated by reasonable care.

NOTE — a D is strictly liable (liable regardless of fault) for plaintiff’s harm caused by an abnormally dangerous activity.

Question 20

When can a defendant use deadly force in self defense?

Answer 20

If he reasonably believes that: (1) an individual is intentionally inflicting or about to intentionally inflict unprivileged force upon the defendant; (2) the defendant is put in peril of death, serious bodily harm, or rape by the use or threat of physical force; and (3) the defendant can safely prevent the peril only by the immediate use of deadly force.

Question 21

Slander

Answer 21

Plaintiff must prove: (1) that the defendant knowingly made a false statement about the plaintiff or negligently failed to determine its falsity, (2) the type of statement would tend to harm the plaintiff’s reputation, (3) the defendant intentionally or negligently communicated that statement to a third party (ie, should have foreseen that it would be heard by a third party) and (4) the statement caused the plaintiff special harm (ie, pecuniary/monetary loss)

Question 22

Slander per se

Answer 22

No proof of harm is required when the defamatory statement constitutes slander per se – ie, the statement accused the plaintiff of any of the following: (1) a serious crime (eg, theft, murder, rape), (2) conduct that adversely affects the plaintiff’s occupation (eg, performing surgeries while intoxicated), (3) serious sexual misconduct (ie, infidelity), and (4) having a loathsome disease (eg, sexually transmitted infection)

Question 23

Invasion of privacy based on publicity of false light requires the following elements:

Answer 23

(1) Defendant publicized false information that placed the plaintiff in a false light, (2) the false light would be highly offensive to a reasonable person, (3) the publication was made with actual malice, and (4) the plaintiff suffered damages.

Question 24

Strict Product Liability

Answer 24

A defendant is liable for strict product liability if: (1) product was defective; (2) when it left the D’s control, (3) product must not be expected to undergo significant changes before it gets to the user/consumer; (4) the seller must be in the business of selling the product; (5) damage must result from the defect; and (6) the duty extends to anyone foreseeably endangered by the product

Question 25

Contributory Negligence

Answer 25

General rule: Plaintiff’s negligence completely bars recovery

Exception (last clear chance): Recovery is permitted if the defendant: (1) had last clear chance to avoid plaintiff’s injury and (2) failed to use reasonable care to do so.

Question 26

Public nuisance

Answer 26

An unreasonable interference with a right common to the general public, which requires proof that: (1) the defendant interfered with a public right and (2) that interference was unreasonable – ie it significantly affected public health, safety, peace, or property rights or violated an ordinance, statute, or administration regulation.

Question 27

Slander damages

Answer 27

Plaintiff may only recover special damages (requires a more concrete showing of actual economic loss). However, if slander per se applies, plaintiff is not limited to special damages.