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Rocking the Bar Exam > Torts > Flashcards

Torts Flashcards

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1
Q

intentional torts

what are the elements of an intentional tort?

A
  1. act (including omission)
  2. intent AND
  3. causation
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2
Q

intentional torts

what is the intent requirement for intentional torts generally?

A

actor acts with the purpose of causing the consequence
OR
knows that the consequence is going to come about to a substantial certainty

includes children and mentally incompetent people if they act with the requisite intent

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3
Q

intentional torts

list the intentional torts

A
  1. battery
  2. assault
  3. intentional infliction of emotional distress (IIED)
  4. false imprisonment
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4
Q

intentional torts / battery

what are the elements of battery?

A
  1. defendant causes a harmful or offensive contact with the person of another AND
  2. acts with intent to cause the contact or apprehension of that contact
  3. Causation: act must result in contact of a harmful or offensive nature
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5
Q

intentional torts / battery

what does “harmful or offensive contact” mean?

A

harmful - cause an injury, pain, or illness

offensive - person or ordinary sensibilities would find the contact offensive, victim need not be conscious

hypersensitive victim + defendant knows they are hypersensitive –> defendant may still be liable

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6
Q

intentional torts / battery

does the contact need to be direct?

A

it can be, but not a requirement

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7
Q

intentional torts / battery

does something connected to the person count as battery?

hat on your head, book in your hand, bench you’re sitting on

A

yes, included

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8
Q

intentional torts / battery

does the offense have to be intended?

A

no, only the contact has to be intended

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9
Q

intentional torts / battery

does the Doctrine of Transferred Intent apply?

A

yes

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10
Q

intentional torts

what is the Doctrine of Transferred Intent?

A

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

  1. different intentional tort against the same person that they intended to harm
  2. same intentional tort against a different person
  3. different intentional tort against a different person
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11
Q

intentional torts / battery

if there is expressed or implied consent, is it still a battery?

A

nope, no battery

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12
Q

intentional torts / battery

what damages are allowed? what do you have to prove?

A

nominal damages - no proof of actual harm required

damages from physical harm flowing from the battery, including from eggshell plaintiff rule

punitive damages if defendant acted outrageously or with malice

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13
Q

intentional torts / assault

what are the elements of assault?

A
  1. causes reasonable apprehension of imminent harmful or offensive bodily contact AND
  2. defendant intends to cause apprehension of such contact or to cause the contact itself

bodily contact is NOT required

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14
Q

intentional torts

what is the major difference between assault and battery?

A

battery - bodily contact is required (need proof of harmful or offesnive contact, not bodily injury)

assault - not required

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15
Q

intentional torts / assault

what is required for the plaintiff’s apprehension?

A
  • must be reasonable
  • plaintiff must be aware of the defendant’s action
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16
Q

intentional torts / assault

what does “imminent” require?

A
  • must be without significant delay
  • threats of future harm or hypothetical harm are NOT sufficient
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17
Q

intentional torts / assault

do words constitute an assault?

A
  • generally mere words do NOT constitute an assault
  • but words can be sufficient in certain circumstances –>

if the defendant can carry out the threat imminently and takes action designed to put the victim in a state of apprehension

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18
Q

intentional torts / assault

what is the intent requirement?

A

defendant must intend to cause
1. an apprehension of imminent harmful or offensive conduct
OR
2. the contact itself

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19
Q

intentional torts / assault

what damages are available?

A

can recover nominal damages
proof of actual damages is NOT required
can recover damages from physical harm flowing from the assault
punitive damages may be available in some cases

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20
Q

intentional torts / IIED

what is the definition (elements) of Intentional Infliction of Emotional Distress (IIED)?

A

IEOD

defendant (1) intentionally or recklessly engages in (2) extreme and (3) outrageous conduct that (4) causes the plaintiff severe emotional distress

Causation: D’s actions must be a cause in fact of P’s harm

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21
Q

intentional torts / IIED

what is the intent requirement?

A

defendant must
1. intend to cause severe emotional distress OR
2. act with recklessness as to the risk of causing severe emotional distress

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22
Q

intentional torts / IIED

what is required for “extreme and outrageous conduct”?

A

conduct that exceeds the possible limits of human decency so as to be entirely intolerable in a civilized society

more likely to find conduct/lang if (1) defendant is in a position or authority or influence over the plaintiff OR
(2) plaintiff is a member of a group with heightened sensitivity (children, elderly)

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23
Q

intentional torts / IIED

what are the constitutional limitations for public figures and public officials?

A

must show that the words contain a false statement of fact that was made with actual malice

actual malice = with knowledge that the statement was false or with reckless disregard of its potential falsity

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24
Q

intentional torts / IIED

if the conduct is in the matter of public concern, can a plaintiff recover?

A

seems like no, even if a private plaintiff

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25
Q

intentional torts / IIED / 3p

if the conduct is directed at one party and a different party experiences severe emotional distress, can the different party recover?

A

doctrine of transferred intent MAY apply

depends on related bystanders and defendant’s purpose

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26
Q

intentional torts / IIED /3p

what is a related bystander?

A

(1) immediate family member of the victim (2) who is present at the time of the conduct and (3) contemporaneously perceives the conduct may recover for IIED,

regardless of whether that fam member suffers bodily injury as a result of the distress

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27
Q

intentional torts / IIED / 3p

what is the rule if the D wanted to cause emotional distress on the 3p so they harmed the individual?

A

3p can recover for IIED without showing that they are a close fam member OR contemporaneously perceived the conduct

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28
Q

intentional torts / IIED / 3p

does the doctrine of transferred intent apply when the D intended to commit a diff intentional tort against a diff victim?

A

nope

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29
Q

intentional torts / IIED

what is required to get damages?

A

P must prove severe emotional distress beyond what a reasonable person should endure

if hypersensitive - D only liable if they knew of P’s hypersensitivity

physical injury is NOT required

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30
Q

intentional torts / false imprisonment

what are the elements of false imprisonment?

A
  1. D intends to confine or restrain another within fixed boundaries
  2. actions (or inactions) directly or indirectly result in confinement AND
  3. plaintiff is conscious of the conferment or harmed by it
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31
Q

intentional torts / false imprisonment

what is required for the bounded area?

A

can be large
does not need to be stationary

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32
Q

intentional torts / false imprisonment

what are the methods of confinement?

A

use of physical barriers,
physical force,
threats,
invalid invocation of legal authority,
duress, or
refusing to provide a safe means of escape (omission)

may be false imprisonment when D refused to perform a duty to help the victim escape

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33
Q

intentional torts / false imprisonment

what is the Merchant’s Privilege / Shopkeeper’s Privilege?

A

merchant can, for a reasonable time and in a reasonable manner, detain a suspected shoplifter

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34
Q

intentional torts

if there’s shoplifting, what should I think of?

A

Merchant’s Privilege / Shopkeeper’s Privilege under False Imprisonment

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35
Q

intentional torts / false imprisonment

is the time of confinement relevant?

A

immaterial to the tort

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36
Q

intentional torts / false imprisonment

what intent is required?

A

D must act (1) with the purpose of confining the plaintiff OR (2) knowing that the P’s confinement is substantially certain to result

transferred intent applies

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37
Q

intentional torts / false imprisonment

if confinement is due to D’s negligence, is D liable for false imprisonment?

A

no

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38
Q

intentional torts / false imprisonment

what type of damages are available?

A

nominal damges

actual damages

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39
Q

intentional torts / defenses

list the defenses to intentional torts

A
  • consent
  • self defense
  • defense of others
  • defense of property
  • parental discipline
  • privilege of arrest
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40
Q

intentional torts / defenses / consent

what are the types of consent?

A
  1. actual consent (express)
  2. presumed consent (implied)
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41
Q

intentional torts / defenses / consent

what is required for actual consent?

A

P by words or actions manifests the willingness to submit to the D’s conduct

D’s conduct may not exceed scope of the consent

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42
Q

intentional torts / defenses / consent

is consent by mistake a valid defense?

A

yes UNLESS D caused the mistake or knew of it and took advantage of it

under actual consent

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43
Q

intentional torts / defenses / consent

is consent by fraud a valid defense?

A

if part of essential matter –> invalid

if part of a collateral matter –> valid defense

under actual defense

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44
Q

intentional torts / defenses / consent

what is required for presumed consent?

A

plaintiff if silent (or otherwise non responsive) but in context, their silence and continued participation can reasonably be construed as consent

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45
Q

intentional torts / defenses / consent

in what situations does presumed consent come up?

A
  • emergencies - assumed to consent to touch
  • injuries arising from athletic contests - consent within scope of sport, but D could be liable if conduct is reckless
  • mutual consent to combat
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46
Q

intentional torts / defenses / consent

how does capacity impact consent?

A

lack of capacity may undermine the validity of consent

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47
Q

intentional torts / defenses / self-defense

what is the Use of Reasonable Force?

A

force that is proportionate to defend against an offensive contact or bodily harm (not excessive)

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48
Q

intentional torts / defenses / self-defense

what is the Duty to Retreat?

A

most jurisdictions have stand your ground laws –> not required to retreat before using reasonable, proportionate force

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49
Q

intentional torts / defenses / self-defense

is the Initial Aggressor able to claim self-defense?

A

NOT permitted to claim self defense UNLESS other party has responded to non deadly force with deadly force

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50
Q

intentional torts / defenses / self-defense

is a person acting in self-defense liable for injury to bystanders?

A

not liable as long as the (1) injury was accidental and (2) actor was not negligent toward the bystander

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51
Q

intentional torts / defenses / defense of others

can you use force to defend others?

A

may use reasonable force in defense of others IF that person would be entitled to use of self-defense

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52
Q

intentional torts / defenses / defense of property

what type of force may be used to defend property?

A

reasonable force if the person reasonably believes it is necessary to prevent tortious harm to the property

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53
Q

intentional torts / defenses / defense of property

can deadly force be used to defend property?

A

no, tg

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54
Q

intentional torts / defenses / defense of property

what is the rule for force for personal property (recapture of chattel)?

A

reasonable force may be used to reclaim personal property that has been wrongfully taken, BUT ONLY if you first request its return, unless that would be futile

if original taking was lawful, then only peaceful means may be used

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55
Q

intentional torts / defenses / defense of property

what are the common law and modern rules for force to regain possession of land?

A
  • common law - reasonable force permitted
  • modern rule - no force, use legal processes
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56
Q

intentional torts / defenses / parental discipline?

what is the rule for force with parental discipline?

A

parents may use reasonable force as necessary to discipline children

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57
Q

intentional torts / defenses / privilege of arrest

is a private citizen allowed to use reasonable force to make an arrest for a felony?

A

yes in the case of a felony IF
1. felony has actually been committed
2. arresting party has reasonable grounds to suspect that person has committed the felony

NOT a defense to make a reasonable mistake as to the identity of the felon
NOT a defense to make a mistake as to whether the felony was actually committed

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58
Q

intentional torts / defenses / privilege of arrest

what is the rule for police and felonies?

A
  1. must reasonably believe that a felony has been committed
  2. person arrested committed it

NOT subject to tort liability if officer makes a mistake as to whether a felony has been committed

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59
Q

intentional torts / defenses / privilege of arrest

what is the rule for police and misdemeanors?

A

arrest by a police officer may only be made if misdemeanor was committed in officer’s presence

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60
Q

intentional torts / defenses / privilege of arrest

what is the rule for private citizens and misdemeanors?

A

only if there is a breach of the peace

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61
Q

property torts

what are the categories of property torts - harms to personal property and land

A
  1. trespass to chattels
  2. conversion
  3. trespass to land
  4. nuisance
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62
Q

what is chattel?

A

real property

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63
Q

property torts / trespass to chattel

what is the definition of trespass to chattels?

A

an intentional interference with the plaintiff’s right to possess personal property by
1. dispossessing the plaintiff of the chattel
2. using or intermeddling with the plaintiff’s chattel OR
3. damaging the chattel

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64
Q

property torts / trespass to chattel

what intent is required?

A

only the intent to do the interfering act is necessary
don’t need to intend to interfere

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65
Q

property torts / trespass to chattel

is mistake about the legality of the action a defense?

A

nope

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66
Q

property torts / trespass to chattel

what damages are available?

A
  • dispossessing or damaging –> may recover actual damages, damages resulting for loss of use, nominal damages, or cost of repair
  • use or intermeddling –> may only recover actual damages

remember there are three types

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67
Q

property torts / conversion

what is conversion?

A

intentionally committing an act (1) depriving the P of possession of his chattel OR (2) interfering with the P’s chattel in a manner so serious as to deprive the P entirely of the use of the chattel

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68
Q

property torts / conversion

what intent is required?

A

D must only intend to commit the interfering act

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69
Q

property torts / conversion

is mistake of law or fact available as a defense?

A

nope

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70
Q

property torts / conversion

what damages are available?

A

P can recover chattel’s full value at the time of conversion

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71
Q

property torts / conversion vs. trespass to chattel

what factors do courts consider when determining if something is trespass to chattel or conversion?

A
  • duration and extent of the interference
  • D’s intent to assert a right inconsistent with the rightful possessor
  • D’s good faith
  • expense or inconvenience to the P AND
  • extent of the harm

difference is more of a degree of seriousness rather than specific behavior

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72
Q

property torts / trespass of land

what is the definition of trespass of land?

A

D intentionally causes a physical invasion of someone’s land

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73
Q

property torts / trespass of land

what intent is required?

A

D only have the intent to enter the land OR cause the physical invasion
not required to intend to commit a wrongful trespass

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74
Q

property torts / trespass of land

is mistake of fact a defense?

A

nope

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75
Q

property torts / trespass of land

does physical invasion include objects?

A

yes, includes causing objects to invade the land

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76
Q

property torts / trespass of land

what is the difference b/t trespass and nuisance?

A
  • trespass - ALWAYS involves an actual physical invasion or intrusion upon the land
  • nuisance - may or may not involve a physical invasion or intrusion
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77
Q

property torts / trespass of land

is it trespass or nuisance that always involves an actual physical invasion or intrusion upon the land?

A

trespass

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78
Q

property torts / trespass of land

who can bring an action (rightful plaintiff)?

A

anyone in possession, not just the owner

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79
Q

property torts / trespass of land

what is required for damages?

A

no proof of actual damages is required

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80
Q

property torts / trespass of land

is necessity available as a defense to trespass (in general)?

A

yes, available to someone who enters onto someone else’s land or interferes with that idv’s personal property to prevent an injury or other severe harm

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81
Q

property torts / trespass of land

what is the rule for private necessity (partial or qualified privilege)?

A
  • D is not liable for nominal damages
  • D is liable for actual damages they caused
  • landowner may not use force to exclude the person
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82
Q

property torts / trespass of land

what is the rule for public necessity?

A

definition: private property is intruded upon or destroyed when necessary to protect a large number of people from a public calamity

NOT liable for damages to the property

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83
Q

property torts / trespass of land

in what type of necessity (private vs. public) is someone liable for damages to the property?

A

private necessity, NOT public necessity

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84
Q

property torts / nuisance / private nuisance

what is the definition of private nuisance?

A

activity that (1) substantially and (2) unreasonably interferes with (3) another’s use and enjoyment of land

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85
Q

property torts / nuisance / private nuisance

what constitutes an unreasonable interference?

A

cts are vague

must be annoying to an ordinary, reasonable person

hypersensitive person may not have a cause of action

if not actually bothered, may still have a cause of action for nuisance if it would bother ordinary reasonable person

cts will balance interference vs. utility of the nuisance

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86
Q

property torts / nuisance / private nuisance

is blocking of sunlight or obstruction of views a nuisance? is there an exception to this rule?

A

no

exception: spite fence or spite wall

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87
Q

property torts / nuisance / private nuisance

what are defenses to private nuisance?

A
  • compliance with state or local admin regs –> evidence as to whether the activity is reasonable, not a compete defense
  • coming to the nuisance (you moved somewhere knowing about the nuisance) - cts hesitant to find a nuisance, not a compete defense
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88
Q

property torts / nuisance / public nuisance

what is a public nuisance?

A

unreasonable interference with a right common to the public as a whole

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89
Q

property torts / nuisance / public nuisance

what are the two types of plaintiffs? which one can bring an action?

A
  1. public official - can bring an action on behalf of the public
  2. private individual - can’t bring UNLESS P suffered special harm that is different from general public
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90
Q

negligence

what are the elements of negligence?

A
  1. duty - an obligation toward another party
  2. breach - failure to meet that obligation
  3. causation - cause in fact (actual cause) + proximate cause (legal cause)
  4. damages - the loss suffered
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91
Q

negligence / duty

what is a duty?

A

legal obligation to act a certain way

  1. is there a duty?
  2. what is the nature of duty / what is the standard of care?

for #2 - reasonable care generally, utmost care sometimes

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92
Q

negligence / duty

who do you owe a duty of care to?

A

all persons who may foreseeably be injured by D’s course of conduct

generally no duty to act affirmatively

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93
Q

tip

if there is an unforeseeable plaintiff, what should I think?

A

no liability b/c unforeseeable

don’t worry about whether it’s a duty or proximate cause problem

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94
Q

negligence / duty

does the foreseeability of the harm create a duty?

A

nope, not alone

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95
Q

negligence / duty

what is the Cardozo / majority approach to foreseeability of plaintiff?

A

D only liable to P within zone of foreseeable harm

consider whether the P is a member of the class of persons who might be foreseeably harmed by the conduct

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96
Q

negligence / duty

what is the minority / Andrews / R3d approach to foreseeability of plaintiff?

A

if D can foresee harm to anyone resulting from D’s negligence, then D owed duty to everyone harmed (foreseeable or not)

any time conduct could harm someone, there is a duty

whether this particular P was foreseeable is a proximate cause issue

you have duty to everyone harmed by your negligent act

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97
Q

negligence / duty

is a rescuer a foreseeable P?

A

yes, foreseeable victim of the original negligent conduct

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98
Q

negligence / duty

is a crime victim a foreseeable P?

A

in some circumstances

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99
Q

negligence / duty

what are the exceptions to [no affirmative duty to help others]?

A
  1. assumption of duty - voluntary undertaking
  2. placing another in danger
  3. by authority - ability + actual authority to control another
  4. by relationship - common carrier (bus driver) + passenger, innkeeper + guest
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100
Q

negligence / duty / standard of care

what is the general standard of care?

A

objective
reasonably prudent person under the circumstances

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101
Q

negligence / duty / standard of care

what is the standard of care for physical characteristics?

A

modified, D is compared with a reasonably prudent person with like characteristics

like being blind

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102
Q

negligence / duty / standard of care

what is the standard of care for intoxication?

A

objective standard
same standard as sober people unless intoxication was involuntary

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103
Q

negligence / duty / standard of care

what is the standard of care for children?

A

modified standard
reasonable child of similar age, intelligence, and experience UNLESS engaged in high-risk adult activities (held to objective standard for adults)

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104
Q

negligence / duty / standard of care

what is the standard of care for common carriers and innkeepers?

common carriers = bus drivers, train conductors

A
  • traditional rule: upmost care (higher standard)
  • majority cts today: higher standard of care for common carriers, ordinary negligence for innkeepers
  • minority cts today: ordinary negligence
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105
Q

negligence / duty / standard of care

what is the standard of care for car drivers?

A

general duty of reasonable care (most jurisdictions)

traditionally, drivers were only liable for grossly negligent, wanton, or willful misconduct to guests/friends in the car

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106
Q

negligence / duty / standard of care

in what situations may there be a different standard of care?

A
  • common carriers
  • innkeepers
  • drivers
  • bailors and bailees
  • emergency situations
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107
Q

negligence / duty / standard of care

what is the standard of care for bailors and bailees?

A

common law:

  • bailor must warn a gratuitous bailee of known dangerous conditions
  • if bailor receives the sole benefit, bailee has a lesser duty

bailment = bailee temporarily takes possession of bailor’s property (ex. leaving your car with a valet)

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108
Q

negligence / duty / standard of care

what is the standard of care in emergency situations?

A

reasonable person under the same circumstances

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109
Q

negligence / duty / standard of care / possessors of land

what are the two approaches to possessors of land?

possessors of land –> relates to negligence in the maintenance of property

A
  1. traditional tripartite structure (1/2 juris)
  2. modern way –> further split into minority of states + R3d
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110
Q

negligence / duty / standard of care / possessors of land

what are the three ways to enter land under the traditional approach?

A
  1. invitees - business visitor
  2. licensees - social guest
  3. trespassers
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111
Q

negligence / duty / standard of care / possessors of land

under the traditional approach, what is the rule for invitees?

A

land possessor owes a duty of reasonable care to

  • inspect the property
  • discover unreasonably dangerous conditions AND
  • take reasonable steps to protect the invitee

can’t delegate this duty to independent contractor

invitee is someone who comes onto the land for a material or economic purpose
public invitee - land is held open to the pubic (ex. state fair)
business visitor

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112
Q

negligence / duty / standard of care / possessors of land

under the traditional approach, what is the rule for licensees?

A

land possessor has a duty to (1) make the property reasonably safe OR (2) warn licensees of hidden dangers

no duty to inspect
must exercise reasonable care in conducting activities on the land

enters the land with express or implied permission (like a social guest)

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113
Q

negligence / duty / standard of care / possessors of land

under the traditional approach, what is the rule for trespassers?

A

no duty to undiscovered trespassers
EXCEPTION: refrain from willful, wanton, intentional, or reckless misconduct

discovered or anticipated trespassers - duty to warn or protect from hidden dangers

attractive nuisance doctrine - may be liable

flagrant trespassers - even lesser duty of care

114
Q

negligence / duty / standard of care / possessors of land

what is the attractive nuisance doctrine (under traditional approach)?

A

land possessor may be able for injuries to children trespassing on the land if
1. artificial condition exists in a place where the owner knows or has reason to know that children are likely to trespass
2. knows or has reason to know that the artificial condition poses an unreasonable risk of death or serious bodily harm
3. children do not discover or can’t appreciate the danger (due to their age)
4. utility of maintaining the condition < risk of injury AND
5. fails to exercise reasonable care

115
Q

negligence / duty / standard of care / possessors of land

what is the minority approach (R3d)?

A

reasonable care under the circumstances EXCEPT flagrant trespassers

only duty to flagrant trespassers is NOT to act in an intentional, willful, or wanton manner to cause physical harm

116
Q

negligence / duty / standard of care / possessors of land

what must a landlord do?

A
  1. maintain safe common areas
  2. warn of hidden dangers AND
  3. repair hazardous conditions
117
Q

negligence / duty / standard of care / possessors of land

what is the rule for an off-premises victim?

A

generally not liable for injuries resulting from natural conditions

artificial conditions - must prevent unreasonable risk of harm to persons not on the premises

118
Q

negligence / breach

what is a breach of duty generally? (definition)

A

violation of the relevant standard of care

119
Q

negligence / breach

what are the two approaches?

A
  1. traditional approach - reasonable person standard
  2. cost-benefit analysis - Hand Formula (B < PL)
120
Q

negligence / breach

what is the rule for admissibility of evidence of custom generally?

A

evidence of custom is admissible, but not dispositive of breach

121
Q

negligence / breach

what is the rule for admissibility of evidence of custom of professionals?

lawyers, doctors, accountants, electricians

A

custom is admissible and DISPOSITIVE

compliance with custom = no beach
deviation from custom = breach

122
Q

negligence / breach

what are the two rules for determining the custom for physicians?

A
  • traditional rule: physician in the “same or similar” locality
  • modern trend: national standard

patients must give informed consent

123
Q

negligence / breach

what are the elements of negligence per se / statutory negligence?

A
  1. criminal law or regulatory statute imposes a particular duty for the protection or benefit of others
  2. defendant violated the statute
  3. P must be in the class of people intended to be protected by the statute
  4. accident must be the type of harm that the statute was intended to protect against AND
  5. harm was caused by a violation of the statute

violation of the law consists a breach, statute establishes the standard of care

124
Q

negligence / breach

is excuse a defense for negligence per se?

A
  • D may show that complying with statute would be even more dangerous than violating
  • compliance was impossible or emergency justified violation
  • incapacity (physical disability)
  • vagueness
  • exercised reasonable care in trying to comply
125
Q

negligence / breach / res ipsa loquitur

what is the general principle of res ipsa loquitur?

A

circumstantial evidence of negligence can be sufficient evidence of negligence in some cases

creates permissible inference that allows the case to go to the jury

modern + traditional approach

126
Q

negligence / breach / res ipsa loquitur

what are the elements of res ipsa loquitur under the traditional approach?

A
  1. accident was of a kind that does not ordinarily occur in the absence of evidence
  2. it was caused by an agent or instrumentalist within the exclusive control of D AND
  3. not due to any action by P
127
Q

negligence / breach / res ipsa loquitur

what are the elements of res ipsa loquitur under the modern approach?

A
  1. accident is a type that ordinarily happens as a result of negligence of a class of actors AND
  2. D is a member of that class

more generous than traditional approach

128
Q

negligence / breach / res ipsa loquitur

how do cts approach res ipsa loquitur for medical malpractice?

A

some jurisdictions shift the burden by holding all defendants jointly and severally liable unless they exonerate themselves

129
Q

negligence / breach / res ipsa loquitur

how do cts approach res ipsa loquitur for products liability?

A

many courts ignore the exclusivity requirement when it is clear that the defect originated upstream of the package’s wrapping (like in the supply chain)

130
Q

negligence / causation

what are the two components of causation?

A
  1. cause in fact / actual cause
  2. proximate cause / legal cause
131
Q

negligence / causation / cause in fact

what is the general rule for cause in fact?

A

but-for causation

132
Q

negligence / causation / cause in fact

what are the exceptions to cause in fact?

A
  • multiple tortfeasors
  • multiple possible causes
  • loss of chance
  • multiple sufficient causes doctrine
  • alternative causation
133
Q

negligence / causation / cause in fact

what test is applied when there are multiple sufficient causes?

A

Substantial Factor Test

was the D’s tortious conduct a substantial factor in causing the harm?

134
Q

negligence / causation / cause in fact

what happens if P’s harm was caused by one of multiple D and each was negligent, so it can’t be determined which one caused the harm?

alternative causation

A

cts will shift the burden of proof to the defendants

impose joint and several liability on both D unless each can prove they didn’t cause the harm

135
Q

negligence / causation / cause in fact

what happens if multiple tortfeasors were acting collectively?

A

all D will be jointly and several liable

136
Q

negligence / causation / cause in fact

what is the rule for Loss of Chance of Recovery / Medical Misdiagnosis?

A

Loss of Chance Doctrine - if a doctor negligently reduces the P’s chance of survival, then that P can recover for the lost chance of recovery
can’t recover full damages, only portion that represents their lost chance of survival

137
Q

negligence / causation / cause in fact

what was the traditional but-for analysis for recovery in Medical Misdiagnosis?

A

patient with < 50% chance of survival couldn’t recover from the medial misdiagnosis b/c likely to die anyway
doc’s negligence wasn’t a but for cause

138
Q

negligence / causation / proximate cause

what is the rule for proximate cause?

A
  • scope of liability
  • foreseeability of harm
139
Q

negligence / causation / proximate cause

what is the majority rule for foreseeability of harm?

A

no liability for an unforeseeable type of harm

140
Q

negligence / causation / proximate cause

define intervening and superseding causes

A

intervening cause - doesn’t break chain of causation
superseding cause - DOES break the chain

141
Q

negligence / causation / proximate cause

what is the rule for intervening and superseding causes?

A

whether the injury is within the scope of what made the conduct negligent in the first place

3p criminal acts may/may not break the chain of causation

142
Q

negligence / causation / proximate cause

how much of the P’s injuries is the D liable for?

A

full extent of P’s injuries, even if unusual or unforeseeable (Eggshell Plaintiff)

143
Q

negligence / causation / proximate cause

what is the foreseeability requirement for damages?

A

TYPE of damages must be foreseeable, NOT the extent

144
Q

negligence / damages

are compensatory damages available?

A

yes

can include costs of physical injuries + emotional damages

P must take reasonable steps to mitigate damages

145
Q

negligence / damages

what type of compensatory damages are available for personal injuries?

A
  • medical expenses (past + future)
  • lost income and reduced earning capacity
  • pain and suffering (past + future)
146
Q

damages

what is the purpose of actual (compensatory) damages

A

make the plaintiff whole again

147
Q

damages

what are the two main categories of damage?

A

compensatory + punitive

148
Q

damages

what is the purpose of punitive damages?

A

punish + deter future conduct

149
Q

negligence / damages

what type of compensatory damages are available for property damage?

A

difference b/t mkt value of property before and after the injury

may allow cost of repair or replacement as alternative measure

150
Q

negligence / damages

what is the traditional Collateral-Source Rule?

A
  • benefits or payments to the P from outside sources are NOT credited against the liability of any tortfeasor
  • evidence of such payments is NOT admissible
  • outside sources like insurance payments, sugar daddy
151
Q

negligence / damages

what is the modern Collateral-Source Rule?

A

most states eliminated or substantially modified the rule to avoid double recovery

152
Q

negligence / damages

are punitive damages available?

A
  • may be available if D acted willfully, wantonly, recklessly, or with malice OR if an inherently malicious tort is involved
  • may be limited by statute
  • SCOTUS - single digit ratio
153
Q

negligence / pure emotional harm

what is Negligent Infliction of Emotional Distress (NIED)?

A

pure emotional harm

P can recover for NIED if
1. P was within zone of danger of the threatened physical impact AND
2. threat of physical impact caused emotional distress

154
Q

negligence / pure emotional harm

can a bystander recover for Negligent Infliction of Emotional Distress?

A

if
1. closely related to person injured by D (relational proximity)
2. was present at the scene of the injury (geographic proximity) AND
3. personally observed the injury (temporal proximity)

155
Q

negligence / pure emotional harm

what special relationships may qualify for Negligent Infliction of Emotional Distress?

A
  • negligent mishandling of a corpse
  • negligent medical info (like a negligent misdiagnosis)
156
Q

negligence / pure emotional harm

is physical manifestation required for Negligent Infliction of Emotional Distress?

A

most jurisdictions require some physical manifestation of distress (nausea, insomnia, miscarriage)

157
Q

negligence / pure economic loss

can a P recover for pure economic loss?

A

can’t recover in negligence without any related personal injury or pretty damage

158
Q

negligence / loss of consortium

what happens if there is Loss of Consortium?

A
  • allows recovery for loss arising from injury to a fam member
  • fam members (like a spouse) can claim loss of consortium or companionship
159
Q

negligence / wrongful death and survival actions

when can a survival action be brought?

A

brought by representative of decedent’s estate on behalf of decedent for claims that they would have had at hte time of their death

160
Q

negligence / wrongful death and survival actions

when can a wrongful death action be brought?

A

brought by decedent’s spouse or representative to recover losses suffered by spouse of representative as a result of decedent’s death

161
Q

negligence / wrongful death and survival actions

what is the main difference b/t survival action and wrongful death?

A

survival action is like the decedent suing for their loss

wrongful death is the fam suing for their loss (not the decedent’s losses)

162
Q

negligence / wrongful death and survival actions

when can a wrongful life claim be brought?

A

by child for D’s negligent failure to properly perform a contraceptive procedure or diagnose a congenital defect

most states don’t allow, recovery limited to expesnes attributable to disability (UWorld)

163
Q

negligence / wrongful death and survival actions

when can a wrongful birth claim be brought?

A

by parents for D’s negligent failure to properly perform a contraceptive procedure or diagnose a congenital defect

some states allow recovery for medical expenses + pain and suffering

164
Q

negligence / wrongful death and survival actions

what is the main difference between a wrongful life and wrongful birth claim?

A

wrongful life is brought by child

wrongful birth is brought by parents

165
Q

negligence / vicarious liability

who is liable under vicarious liability? is indemnification possible?

A

joint and several liability for employer + employee

party held responsible can seek indemnification from the directly responsible party

166
Q

negligence / vicarious liability

what is the rule for respondeat superior?

A

employer is held vicariously liable for negligence of an employee IF it occurred within the scope of employment

167
Q

negligence / vicarious liability

what is the difference between direct negligence and vicarious liability with the employer’s liability?

A

direct negligence - liable for employer’s own negligence

vicarious liability - employee’s actions

168
Q

negligence / vicarious liability

are employers liable for the intentional torts of employees?

A

generally NOT liable

unless within scope of employment

169
Q

negligence / vicarious liability

how is scope of employment determined under common law?

A

frolic - major deviation from scope of employment, employer is NOT liable

detour - minor, is liable

170
Q

negligence / vicarious liability

are employers liable for torts committed by independent contractors?

A

generally no

171
Q

negligence / vicarious liability

how do you determine if someone is an independent contractor or employee?

A

if employer retains a right of control over the way the employee does the work, then employee

172
Q

negligence / vicarious liability

what duties can an employer NOT delegate to an independent contractor?

A
  • inherently dangerous activities
  • duties to the public or specific P for certain types of work
  • shopkeepers have a duty to keep the premises safe for the public
173
Q

negligence / vicarious liability

what is the apparent agency doctrine?

agency concept too

A

independent contractor will be treated as an employee IF

(1) injured person accepted IC’s services (2) based on a reasonable belief that the IC was an employee, (3) based on manifestations from the employer AND
(4) IC’s negligence is a factual cause of harm to the person who receives the services and (5) such harm is within the scope of liability

174
Q

negligence / vicarious liability

are business partners liable for tots of other business partners?

A

yes if within scope of business’s purpose

175
Q

negligence / vicarious liability

are automobile owners liable for negligently entrusting a vehicle to someone?

A

can be directly liable for negligently entrusting a vehicle to someone who is not in the position to exercise reasonable care

176
Q

negligence / vicarious liability

are automobile owners liable for tortious acts of a family member driving the car with permission?

A

may be vicariously liable

177
Q

negligence / vicarious liability

are parents vicariously liable for their minor children’s torts?

A

generally no

178
Q

negligence / vicarious liability

traditionally, were state and federal governments able to be liable for torts?

A

no, they were immune

immunity has been waived by statutes

179
Q

negligence / vicarious liability

what is the Federal Tort Claims Act?

A

expressly waives immunity and allows the fed govt to be sued for certain types of torts

exceptions (govt maintains immunity): discretionary functions, traditional govt activities, certain enumerated torts

180
Q

negligence / vicarious liability

for state govt and munis, do they have immunity for governmental functions?

A

yes, immunity applies

181
Q

negligence / vicarious liability

for state govt and munis, do they have immunity for proprietary functions?

A

no, immunity has been waived

182
Q

negligence / sharing liability

when does joint and several liability apply?

A
  • 2+ tortfeasors
  • tortfeasors acting in concert
  • alternative liability
  • res ipsa loquitur against multiple D
  • vicarious liability
183
Q

negligence / defenses

what is the defense for contributory negligence under the traditional rule?

A

If P was negligent in some way, that negligence completely precluded the P’s recovery

some states still use

184
Q

negligence / defenses

what is the defense for contributory negligence under the Last Clear Chance Doctrine?

Last Clear Chance Doctrine is EXCEPTION to Contributory Negligence

A

allows a negligent P to recover upon showing that D had the last clear chance to avoid injuring the P but failed to do so

185
Q

negligence / defenses

what is comparative fault? what are the frameworks?

A

P’s negligence doesn’t completely bar recovery, limits their ability to recover

  • pure comparative negligence
  • modified comparative negligence
186
Q

negligence / defenses

what is assumption of the risk?

A

applies when a party knowingly or willingly embraces a risk for some purpose of his own
can be express or implied

187
Q

negligence / defenses

what is the rule for implied assumption of risk?

A
  • participant or spectator in athletic event can’t recover b/c they knew of and chose to accept the risks
  • unreasonably proceeding in the face of known, specific risk
188
Q

negligence / defenses

what is the rule for express assumption of risk?

A

parties can contact to disclaim liability for negligence

  1. is the waiver clear?
  2. is the waiver enforceable?

might not enforce if
(1) waiver disclaims liability for reckless or wanton misconduct,
(2) gross disparity of bargaining power b/t two parties,
(3) party seeking to enforce offers services of great importance to the public (medical services),
(4) provision is subject to contract defenses (fraud, duress, etc.),
(5) enforcement would be against PBPL

189
Q

strict liability

what are the categories of strict liability?

A
  1. abnormally dangerous activities
  2. animals
  3. defective products
190
Q

strict liability / abnormally dangerous activities

what is the general rule for abnormally dangerous activities? what factors are used?

A

D will be held strictly liable for personal injuries and property damage caused by the activity, regardless of any precautions

scope of liability - harm that flows from the risk that made the activity abnormally dangerous

  • whether it creates a foreseeable and highly significant risk of harm even when the actor takes due care
  • severity of the harm resulting from the activity
  • appropriateness of the location for the activity
  • whether it has great value to the community
191
Q

strict liability / animals

what is the rule for wild animals?

A

SL for harm from animal’s dangerous propensity

SL for injuries caused to licensees and invitees

NOT SL for trespassers (some jurisdictions have exceptions for vicious watchdogs)

192
Q

strict liability / animals

what is the rule for domestic animals?

A

SL if owner knows/has reason to know the particular animal has dangerous propensity

many states hold owners SL for dog bites

193
Q

strict liability / animals

what is the rule for trespassing animals?

A

SL for reasonably foreseeable damage caused by animal while trespassing on someone’s land

exceptions:

  • household pets
  • animals on public roads (negligence standard)
194
Q

strict liability

what are the defenses to SL?

A
  • contributory negligence - doesn’t bar recovery
  • comparative negligence - varies
  • assumption of the risk - complete bar to recovery
195
Q

strict liability / products liability

what type of claims can a P bring for products liability?

A
  1. negligence - must prove duty, breach, causation, damages
  2. SL for defective products
  3. breach of warranty claim
196
Q

strict liability / products liability / defective product

what are the types of product defects?

A
  1. manufacturing defects
  2. design defects
  3. failure to warn

this matters for deciding which test to use when proving the defect

197
Q

strict liability / products liability / defective product

what are the elements of a products liability claim?

A
  1. product was defective (manufacturing, design, failure to warn)
  2. defect existed when the product left the defendant’s control AND
  3. defect caused the P’s injury when the product was used in a foreseeable way
198
Q

strict liability / products liability / defective product

how do you establish a defect claim (element #1) for a manufacturing defect?

A
  1. product deviated from its intended design
  2. product does NOT conform to the manufacturer’s own specifications
199
Q

strict liability / products liability / defective product

how do you establish a defect claim (element #1) for a design defect?

A

test 1: consumer expectation test
if less safe than the ordinary consumer would expect

test 2: risk-utility test
if risks outweigh the benefits, must show there is a reasonable alternative design

200
Q

strict liability / products liability / defective product

how do you establish a defect claim (element #1) for a failure to warn?

A
  1. was there a foreseeable risk that was not obvious to an ordinary user AND
  2. were the steps taken to warn about that risk reasonable?

learned intermediary rule (prescription drugs) - manufacture has to warn the prescribing doctor

201
Q

strict liability / products liability / defective products

what is required for plaintiffs?

A

no privity requirement - can sue the entire supply chain

anyone foreseeability injured by a defective product

202
Q

strict liability / products liability / defective products

what is required for defendants?

A

anyone who sells the product when it is defective

must be in the chain of distribution + business of selling

causal sellers are NOT SL, but maybe negligence

203
Q

strict liability / products liability / defective products

what damages are available?

A

personal injury or property damages

purely economic loss is generally NOT recoverable

204
Q

strict liability / products liability / defective products

what defenses are available?

A
  • contributory negligence - probs not complete bar
  • comparative fault
  • assumption of the risk
  • product misuse, modification or alteration (P’s misuse has to be foreseeable)
  • substantial change in the product can bar recovery
  • compellable with govt standards - admissible for product defective but not conclusive
  • state of the art defense - can be a complete bar
  • disclaimers, limitations, waivers - generally doesn’t bar recovery
205
Q

strict liability / products liability / breach of warranty

what are the two types of warranties?

A

implied + express warranties

206
Q

strict liability / products liability / breach of warranty

what are the two types of implied warranties?

A
  1. merchantability - product is suitable for the ordinary purposes for which it is sold
  2. fitness for a particular purpose - seller knows the particular purpose and buyer relies on seller’s skill or judgment
207
Q

strict liability / products liability / warranties

what defenses are available for breach of warranty?

A
  • disclaimers
  • tort defenses - contributory negligence, comparative fault, assumption of the risk, product misuse
208
Q

defamation

what are the basic elements of defamation?

A

P must prove that D

  1. made a defamatory statement
  2. that is of or concerning the P (the particular P) must be living
  3. statement was published to a 3p who understood the defamatory nature
    AND
  4. there is resulting damage to P’s reputation
209
Q

defamation

what is required for “defamatory language?”

A

language that diminishes respect, esteem, or goodwill toward the P OR deters others from associating with the P

must be false to be actionable

210
Q

defamation

is someone who repeats a defamatory statement liable for defamation?

A

they may be independently liable

211
Q

defamation / constitutional requirements

what are the constitutional requirements / limitations?

A

depend on the type of plaintiff + content of the statement

type plaintiff - public official, pubic figure, private individual

content - matter of pubic concern, matter of private concern

212
Q

defamation / constitutional requirements

who is a public figure?

A

either general purpose pubic figure or limited purpose public figure

power of persuasion and influence in society

may be in general or for a particular issue

213
Q

defamation / constitutional requirements

who is a public official?

A

substantial responsibility or control over a govt office, including a political candidate

214
Q

defamation / constitutional requirements

what is the rule for a public figure or public official?

A

actual malice standard
various types of damages available

215
Q

defamation / constitutional requirements

what is the rule for a private individual + matter of public concern?

A

negligence standard - actual damages only

actual malice standard - presumed damages available

216
Q

defamation / constitutional requirements

what is the rule for a private individual + matter of private concern?

A

negligence standard - general damages without proving actual malice

217
Q

tip

what is the framework for defamation?

A
  1. is the P a public official/figure or private individual?
  2. what is the standard of proof in order to recover?
  3. what type of damages are available?
218
Q

defamation / constitutional requirements

what does a P have to prove if they are a public official / public figure?

A

person who made the statement knew that it was false OR acted with reckless disregard for the truth

actual malice standard

219
Q

defamation / constitutional requirements

what does a P have to prove if they are a private individual + matter of public concern?

A
  1. statement is false
  2. person who made the statement was negligent (should have known the statement was false)
220
Q

defamation / constitutional requirements

what does a P have to prove if they are a private individual + matter of private concern?

A

unclear

most jurisdictions require showing that D was at least negligent as to the falsity of the statement

221
Q

defamation / constitutional requirements

what damages are available for liabel?

A

general damages - recovery w/o evidence of measurable harm

222
Q

defamation / constitutional requirements

what damages are available for slander?

A

P must prove special damages (show economic loss)

exceptions for slander per se (general damages available)

  • commission of a serious crime
  • unfitness for a trade or profession
  • having a loathsome disease
  • severe sexual misconduct
223
Q

defamation / defenses

what are the categories of defenses for defamation?

A
  1. truth - absolute defense
  2. consent - if you consent to defamation, can’t sue
  3. privileges
224
Q

defamation / defenses

what is required for absolute privilege?

A

the speaker is completely immune from liable for defamation

statements including:

  • in the course of judicial proceedings
  • course of legislative proceedings
  • b/t spouses
  • required publications by radio and TV
225
Q

defamation / defenses

what is required for conditional privilege (qualified)?

A

statement is made in good faith pursuant to some duty or responsibility

P must show a higher level of culpability

includes statements made
* in the interest of the D (defending your reputation)
* interest of the recipient of the statement
* affecting some important public interest

226
Q

privacy torts

who does the right of privacy apply to?

A

individuals not corporations

227
Q

privacy torts

when does the right to privacy terminate?

A

upon death of P

228
Q

privacy torts

what are the causes of action for invasion of property?

A

I FLAP

_I_ntrusion upon selection
_F_alse _L_ight
Appropriation of the right to _P_ublicity
Public Disclose of _P_rivate Facts

229
Q

privacy torts

what damages are available?

A

P need not prove special damages (economic loss)

emotional or mental distress if sufficient

230
Q

privacy torts

what defenses are available?

A
  • consent
  • qualified and absolute privilege - only False Light and Pubic Disclosure
  • truth is NOT a defense
231
Q

what is the major difference b/t defamation and privacy torts?

A

truth is a defense for defamation, but not privacy torts

232
Q

privacy torts / cause of action

what is required for Intrusion upon Seclusion?

A

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

233
Q

privacy torts / cause of action

what is required for False Light?

A

D
(1) publication of facts about the P
(2) that place the P in a false light
(3) which would be highly offensive to a reasonable person

234
Q

privacy torts / cause of action

what is required for Appropriation of the Right to Publicity?

A

when someone (1) appropriates another’s name or likeness (2) for D’s advantage (3) w/o consent and (4) causes injury

appropriation must be exploitative, but not necessarily commercial

235
Q

privacy torts / cause of action

what is required for Public Disclosure of Private Facts?

A
  1. D publicizes a matter concerning the private life of another
  2. the matter publicized is highly offensive to a reasonable person AND
  3. the matter is not of legitimate concern to the public (hard to prove)
236
Q

intentional misrepresentation (fraud)

what are the elements of intentional misrepresentation (fraud)?

A
  1. false representation
  2. scienter
  3. intent
  4. causation
  5. justifiable reliance
  6. damages
237
Q

intentional misrepresentation (fraud)

what is required for the false representation element?

A

must be about a material fact
includes concealing a material fact
no duty to disclose a material fact to other parties generally

238
Q

intentional misrepresentation (fraud)

what is required for the scienter element?

A

D knows that the representation is false or acted with reckless disregard for its falsity

239
Q

intentional misrepresentation (fraud)

what is required for the intent element?

A

D must intend to induce the P to act in reliance on the misrepresentation

240
Q

intentional misrepresentation (fraud)

what is required for the causation element?

A

misrepresentation must have caused the P to act or refrain from acting

241
Q

intentional misrepresentation (fraud)

what is required for the justifiable reliance element?

A

reliance is NOT justifiable if the facts are obviously false OR it is clear the D was stating an opinion

242
Q

intentional misrepresentation (fraud)

what is required for damages?

A

P must prove actual, economic, pecuniary loss
no nominal damages

most jurisdictions: recovery is benefit of the bargain

243
Q

negligent misrepresentation

what are the elements of negligent misrepresentation?

A
  1. D provided false info to P
  2. as a result of D’s negligent in preparing the info
  3. during the course of a business or profession
  4. causing justifiable reliance and pecuniary loss AND
  5. P is either in a contractual relationship with D OR P is 3p known by D to be a member of the limited group for whose benefit the info is supplied

negligence misrepresentation is a different cause of action than tort of negligence

244
Q

negligent misrepresentation

what defense are available?

A

negligence defenses

245
Q

negligent misrepresentation

what damages are available?

A

reliance and consequential damages IF negligent misrepresentation is proven with sufficient certainty

246
Q

what are the elements of intentional interference with a contract?

A
  1. valid contract existed b/t 3p and P (can’t be terminable at will)
  2. D knew of the contractual relationship
  3. D intentionally interfered with the contract, resulting in a breach AND
  4. breach caused damages to P
247
Q

what are the elements of trade libel?

A
  1. publication
  2. of a false or derogatory statement
  3. with malice
  4. relating to P’s title to their business, quality of their business, or quality of products AND
  5. causes special damages as a result of interference with or damage to business relationships
248
Q

what are the elements of slander of title?

A
  1. publication
  2. of a false statement
  3. derogatory to P’s title
  4. with malice
  5. causing special damages
    AND
  6. diminishes value in eyes of 3p
249
Q

what parties have a special duty to protect others?

MBE PQs 1

A

P lease H elp E liminate S afety C oncerns C ausing I njuries

  • parent/child
  • hospital/patient
  • employer/employees
  • shopkeeper/business invitees
  • common carrier/passengers
  • custodian/person in custody
  • innkeeper/guests
250
Q

what is the default framework for negligence on MBE?

MBE PQs 1

A

pure comparative negligence NOT traditional contributory negligence

251
Q

is the owner of a wild animal SL for fearful reaction to the animal?

MBEs PQs 1

A

yes, SL for harm that is caused by a plaintiff’s fearful reaction to the sight of an unrestrained wild animal or directly results from the wild animal’s abnormally dangerous characteristics

252
Q

what is needed for market share liability?

Essay 4495

A

(1) if the plaintiff’s injuries are caused by a fungible product and (2) 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

253
Q

what can a partially negligent P not recover in a modified comparative negligence regime?

PQs Set 2

A

P’s recovery is barred if their fault > 50%

some juris do >= 50%

254
Q

when is a commercial supplier of a component that is integrated into a defective product subject to strict liability?

PQs Set 2

A

(1a) the component is defective or (1b) the supplier substantially participated in the process of integrating the component into the product’s design AND
(2) the component’s integration caused that product to be defective

255
Q

what is the minority approach to negligence per se?

PQs Set 2

A

defendant’s violation of a statute or ordinance creates a rebuttable presumption (as opposed to a conclusive presumption) that the defendant breached a duty of care

256
Q

what must a plaintiff prove for intentional interference with a contract?

PQs Set 2

A
  1. valid contract existed b/t P and 3p
  2. D knew of that contractual relationship
  3. D intentionally and improperly interfered with the contract’s performance
    AND
  4. that interference caused the P’s pecuniary (monetary) loss
257
Q

under the Informed Consent Doctrine, what happens if a physician fails to disclose the risks of a medical treatment?

PQs Set 2

A

liable for negligence if

  1. failure to disclose caused the patient to consent
    AND
  2. undisclosed risk materialized and resulted in phsycial harm
258
Q

under pure comparative negligence, when can P recover when negligent?

PQs Set 3

A

P’s negligence reduces recovery by P’s proportionate fault

259
Q

what must P prove in a medical malpractice action to recover damages?

PQs Set 3

A

P must prove that D’s conduct was the actual and proximate cause of P’s injury

actual cause –> P’s harm would not have occurred but for D’s conduct

260
Q

what is the standard of care for a professional (like a lawyer)?

PQs Set 3

A

same knowledge, skill, and care as another professional in similar community

national (not community) standard to medical specialists (doctors)

261
Q

private nuisance

Who is the focus of a private nuisance claim?

PQs Set 4

A

interference with use and enjoyment of property is substantial (intolerable to normal person) + unreasonable

262
Q

when is expert testimony needed to establish the standard of care?

PQs Set 4

A

for a professional, generally need an expert witness

but if D’s negligence is so apparent that a lay person could identify it, then expert testimony is not required

263
Q

when does assumption of the risk NOT apply as a defense?

PQs Set 4

A

defense does not apply when the defendant’s tortious conduct left the plaintiff with no reasonable alternative but to proceed despite that risk

264
Q

strict liability for animals:
is owner of land and/or owner of the animals liable for reasonably foreseeable damages?

PQs Set 4

A

owner of the animal only

liability does not extend to landowner unless they had a right to possess the animal

265
Q

tip

if there’s joint and several liability and I’m trying to find out someone can recover, what should I do?

PQs Set 4

A

P can recover the ENTIRE amount from any D

when multiple defendants were found to have caused the plaintiff indivisible harm

266
Q

Rylands v. Fletcher rule for fires under early common law

NCBE Simulated MBE 1

A

landowners were strict liable for spread of fire

now Rylands only applies to abnormally dangerous activities

modern view is to use negligence standard for spread of fire

267
Q

what type of claim could it be relevant whether the company adhered to state of the art safety standards?

NCBE Simulated MBE 1

A

relevant for negligence

not really relevant for strict liability

268
Q

what can be used as an affirmative defense to strict liability for abnormally dangerous activities?

UWorld

A

assumption of the risk

WHEN P (1) knows of the risk of harm AND
(2) voluntarily accepts that risk

269
Q

tip

default framework for MBE

A
  • joint and several liability
  • pure comparative negligence
270
Q

tip

what is the BEST defense?

A

an element of a tort hasn’t been satisfied

this is better answer than an affirmative defense

271
Q

tip

damages available for trespass to chattel vs. conversion

A
  • conversion - full value of item
  • trespass to chattel - amount of the damages
272
Q

tip

if the question is asking about strict liability, what answer choice can I remove immediately?

A

reasonable care

since it’s strict liability, reasonable care doesn’t matter

273
Q

tip

pure several liability

A

you can only sue a party for their % of fault

different from joint and several liability

274
Q

if multiple Tortfeasors, what are the possible options for their liability?

UWorld

A
  • if acting in concert –> joint + several liability
  • if acting independently + injuries are indivisible –> joint + several
  • if acting independently + injures are separable –> several liability only
275
Q

do negligent intervening acts break the chain of causation?

UWorld

A
  • negligent intervening acts (medical malpractice) are foreseeable and do NOT cut off D’s liability
  • superseding causes (unforeseeable) break chain of proximate causation
276
Q

tip

how to start negligence essay

JD Advising One Sheets

A

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.

277
Q

standard of care for someone with intellectual or emotional disability

MBE Mixed Set

A

not considered in their standard of care

so person with ordinary intelligence and knowledge

278
Q

standard of care for someone with physical disability

MBE Mixed Set

A

reasonably careful person with same physical disability

279
Q

tip

if SL is at issue / abnormally dangerous activity, pay attention to what?

NCBE Simulated #2

A

pay attention to whether the injury was b/c of the abnormally dangerous activity

ex. driver gets into car crash b/c toxic waste spills on street - not because of dangerous characteristic of the waste

280
Q

Russian roulette fact pattern - what is the dispositive issue for a negligence action

NCBE Simulated #2

A

whether the friend was also negligent

b/c
contributory negligence could be a defense

281
Q

battery single intent rule

MBE Practice Exam #4

A
  • majority rule
  • D only need to intend to cause the contact with another
  • does NOT require showing that D intended to cause the physical injury
282
Q

can an emergency professional recover for damages from negligent party for a risk inherent in the job?

MBE Practice Exam #4

A

firefighter’s rule
emergency professional is BARRED from receiving damages
from the party whose negligence caused the professional’s injury IF THE injury arises from a risk inherent in the job

Rocking the Bar Exam (16 decks)

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