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MBE Review > Torts > Flashcards

Torts Flashcards

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1
Q

NIED in the absence of physical impact

A

special relationships bw π and ∆ (eg., common carrier mistakenly reporting the death of a relative)

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2
Q

Can you recover attorney’s fees in a personal injury action?

A

No

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3
Q

What can you recover in a personal injury action

A

past and future pain & suffering, medical expenses, lost wages and any reduction in future earnings capacity, and loss of consortium

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4
Q

Can a private person bring a public nuisance claim?

A

Yes if they suffer special harm that is different than for the general public

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5
Q

Learned Intermediary Doctrine

A

MFR of prescription drug/medical device satisfies its duty to warn by informing the prescribing physician of problems with the drug/device

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6
Q

Are punitive damages appropriate for negligence?

A

No.

Punitive damage only for intentional torts with malice

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7
Q

Are assault and battery –> intentional torts?

A

Yes

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8
Q

Is trespass to chattels –> intentional torts?

A

Yes

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9
Q

trespass to chattels

A

intermeddling with the π’s chattel

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10
Q

Is physical injury necessary for IIED?

A

No

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11
Q

Is a supplier of a component that is integrated into a product defectively by the MFR liable for any damages that ensue?

A

No

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12
Q

battery -

A

harmful, offensive contact with another person with intent to bring about that contact

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13
Q

is there an intent requirement for NIED

A

No, only for IIED

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14
Q

Do you need extreme and outrageous conduct for NIED

A

No, only for IIED

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15
Q

Under NIED, for a person not within zone of danger to recovers

A

She must be:
1. closely related to the person injured by the ∆;
2. present at the scene of the injury; and
3. personally observe/perceive the injury

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16
Q

Can a plaintiff recover on economic loss in a negligence action?

A

Not if also accompanied with damages from physical harm of personal injury or property damage

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17
Q

Negligent entrustment liability of the owner of an automobile if

A

the owner knows/should know of the driver’s negligent propensities

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18
Q

In a comparative negligence jdx, is assumption of risk recognized as a separate defense?

A

No, assumption of risk is merged into comparative fault analysis and merely reduces recovery

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19
Q

Fumigation: SL or negligence?

A

SL it’s an abnormally dangerous activity

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20
Q

Assumption of Risk and SL?

A

[CL rule] π cannot recover on strict liability claim if they assumed the risk

Assumption of risk is a complete defense to SL when π voluntarily confronted a known risk of harm

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21
Q

False Light

A

π must show that the ∆
1. made public facts about the π that
2. placed the π in a false light,
3. which would be highly offensive to a reasonable person

π must prove actual malice

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22
Q

Can an estate bring a defamation action?

A

No, deceased person cannot legally be defamed

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23
Q

Accidents due to objects falling from AIRPLANE or the AIRPLANE itself harming persons or objects on the ground–SL or negligence?

A

Modern trend is to apply negligence law

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24
Q

Negligence per se

A

When a crim/reg. statute imposes a penalty for violation of a specific duty; if the ∆ violates the statute, then he is liable in negligence to anyone IN THE CLASS OF PEOPLE intended to be protected by the statute for any harms of the type the statute was intended to protect against

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25
Q

Once NPS is established, what must π prove to hold ∆ liable?

A

that π’s injuries were proximately caused by the ∆’s violation of the statute

26
Q

“at the close of all evidence” in Q

A

Q likely about res ipsa loquitur

27
Q

To obtain Res ipsa loquitur jury instruction, π must prove

A
  1. his injury was caused by an instrumentality/agent w/in exclusive control of the ∆,
  2. accident was of a kind that ordinarily doesn’t occur in the absence of negligence,
  3. harm was not due to any action ON THE PART OF THE ∏
28
Q

Is mistake of fact a defense to conversion?

A

No

29
Q

trespass to chattels

A

minor intentional interference w/π’s right to control chattel

30
Q

trespass to chattels liability

A

actual damages

31
Q

conversion

A

subst’l intentional interference w/the π’s right to control chattel

32
Q

conversion damages

A

fair market value of chattel at the time of conversion

33
Q

Does landowner’s burden to eliminate danger a factor in attractive nuisance

A

Yes. If burden is prohibitive, court may find that landowner exercised reasonable care with just warnings for e.g.

34
Q

Do landowners owe a duty of care to discovered/anticipated trespassers?

A

Yes, duty to

  1. warn anticipated trespasser about concealed, dangerous, artificial conditions known to the land possessor but unlikely to be discovered by the trespasser AND
  2. reasonable care while conducting activities on their land
35
Q

Private Nuisance Claim

A

Activity subst’lly + unreasonably interferes w/another individual’s use or enjoyment of the property

36
Q

Standing for Private Nuisance CLaim

A

π must have some possessory interest in the property (e.g., ownership, lease)

37
Q

Negligence per se

A

NPS breach presumed when:

  1. ∆ violated the statute/ordinance;
  2. π suffered a type of harm that the statute/ordinance was intended to protect against;
  3. π was in the class of persons intended to be protected by the statute/ordinance

Liability may be imposed w/o proof of fault

38
Q

libel -

A
  1. ∆ knowingly made a false statement about the π OR negligently failed to determine its falsity (i.e., failed to use reasonable care)
  2. type of statement would tend to harm the π’s repuation
  3. ∆ intentionally/negligently communcated that statement to a 3P
39
Q

Libel Claim brought by public figure/official

A

clear & convincing evidence that ∆ made statement w/actual malice (i.e., knowledge/reckless disregard of the statement’s falsity)

39
Q

libel

A

written defamation

39
Q

Libel Claim brought by private person

A

preponderance of the evidence that ∆ knew/negligently failed to determine the statement’s truth

39
Q

does libel require proof of special harm

A

No

39
Q

Does slander require proof of special harm

A

Yes

40
Q

slander

A

spoken defamation

41
Q

Waivers of the right to sue over tortious conduct are generally valid unless

A

they violate public policy–
1. ∆ is π’s employer,
2. ∆ is hotel/common carrier,
3. ∆ is public servant/service,
4. ∆ has subst’lly more bargaining power

42
Q

Good Samaritan laws

A

relieve medical professionals of malpractice liability for voluntarily rendering emergency first aid

43
Q

consent to sex obtained by fraud in factum

A

consent is obtained by fraud re: the nature of the act itself, leaving the V unaware that she consented

44
Q

consent to sex obtained by fraud in the inducement

A

consent is obtained by fraud re: what the V knows is an act of sexual intercourse

45
Q

negligent misrepresentation reqs:

A
  1. ∆ negligently provided false information during the course of their business/profession;
  2. π justifiably relied upon false information and suffered pecuniary loss as a result; AND
  3. π was in contractual re’ship w/the ∆ OR was 3P known by the ∆ as one for whose benefit the info was supplied
46
Q

negligent misrep. exceptions

A

π’s reliance to the information was unjustified if:
1. info was obviously false OR
2. ∆ was clearly stating a lay opinion

47
Q

If π fails to present legally sufficient evidence to support all the elements of negligence at trial

A

Ct should grant the ∆’s motion for a directed verdict

48
Q

defamation -

A
  1. ∆ knowingly/negligently made false statement about π;
  2. type of statement would tend to harm π’s reputation;
  3. ∆ intentionally/negligently communicated that statement to 3P;
  4. statement caused π SPECIAL DAMAGE (=pecuniary/monetary loss)
49
Q

slander per se

A

proof of special damage is unnecessary for accusations of:

  1. serious crime
  2. conduct that adversely affects the π’s occupation
  3. committing serious sexual misconduct (e.g., adultery)
  4. having loathsome disease (e.g., STI)
50
Q

When 2+ tortfeasors act in concert/to a common design AND 1 causes π’s harm,

A

ALL of the tortfeasors are jointly and severally liable
(e.g., two cars racing in excess of speed limit and one person’s tire blowing out causing injury)

51
Q

public nuisance

A

unreasonable interference with a right common to the general public

however, to have standing to sue, π must have unique injury that is different from the general public

52
Q

trespass to land intent reqs.

A
  1. intent to enter land OR
  2. cause physical invasion

(i.e., doesn’t need to be knowing invasion)

53
Q

when a person is killed during the commission of a felony due to the direct action of someone other than the perpetrator or his accomplices,

A

(Majority) Perpetrator is NOT criminally liable for that death bc the killer is not an agent of the perpetrator

54
Q

A π’s contributory negligence is a defense to Strict Liability in contributory negligence jdx. T/F

A

False

55
Q

3P who repeats/republishes defamatory statement is independently liable for defamation. T/F

A

True–even if the republisher identifies the originator of the statement and expresses a lack of knowledge to its truthfulness

56
Q

interference is not subst’l if (private nuisance)

A

the π’s unusal sensitivity causes her to regard the interference offensive, annoying, or intolerable

57
Q

If a person was denied permission to enter a landowner’s land and does so anyway,

A

he is an anticipated trespasser

and is owed:
1. duty to warn AND
2. duty to make safe any unreasonably dangerous or concealed artificial conditions

58
Q

Special Relationships imposing duty to protect others

A
  1. Parent/Child
  2. Hospital/Patient
  3. Employer/employees
  4. Shopkeeper/business invitees
  5. Common carrier/passengers
  6. Custodian/person in custody
  7. Innkeeper/guests

MBE Review (8 decks)

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