TORTS

Question 1

What must a plaintiff prove to make a claim for negligence?

Answer 1

A plaintiff must prove duty, breach, causation, and harm to make a claim for negligence​.

Question 2

What is the general rule for determining duty?

Answer 2

The reasonably prudent person standard applies.

Question 3

What factors are considered in determining duty for children?

Answer 3

Use a subjective standard for children. Look at the age, intelligence, and experience of the child.

Question 4

What is the exception for children regarding the reasonably prudent person standard?

Answer 4

An exception exists if the child was engaged in an adult activity. If the child was engaged in an adult activity, use the reasonably prudent person standard.

Tip: examples of an “adult activity” include driving a car or boat or shooting a gun.

Question 5

What factors are considered in determining duty based on physical characteristics?

Answer 5

Take into account if the defendant is physically impaired.

Question 6

What factors are considered in determining duty in the case of profesionals?

Answer 6

Take into account a defendant’s superior knowledge.

Question 7

What is negligence per se?

Statute

Answer 7

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

Tip: the plaintiff still must prove causation and harm.

Question 8

What is the role of custom regarding the duty owed by the defendant?

Answer 8

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

Question 9

When is there a duty to control third parties?

Answer 9

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

Question 10

What is the requirement for a premises possessor regarding undiscovered trespassers?

A person the premises possessor does not or should not know of

Answer 10

No duty of care is owed. However, the premises possessor cannot act wantonly or willfully.

Question 11

What must a premises possessor do for discovered trespassers?

A person the premises possessor knows or should know is trespassing.

Answer 11

The premises possessor must warn of or make safe unreasonably dangerous artificial conditions that it knows of.

Question 12

What is the duty owed to licensees?

Social guests

Answer 12

The premises possessor must warn of or make safe all concealed dangers that it knows of.

Question 13

What is the duty owed to invitees?

One that enters a public place or business

Answer 13

The premises possessor must warn of or make safe all dangers that it knows or should know of.

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

Question 14

What must a plaintiff show to establish breach of duty?

Answer 14

A plaintiff must show that the defendant breached its duty of care.

Question 15

What is res ipsa loquitur?

Answer 15

When the circumstances surrounding the injury are unclear, if a plaintiff can show that the injury likely was the result of negligence and that it likely was the defendant that was negligent, the plaintiff has made a case for breach.

Tip: If the plaintiff can show res ipsa loquitur, it means that the case should go to trial and no directed verdict should be entered for the defendant. It does not necessarily mean that the plaintiff wins his case.

Question 16

What are the two types of causation required in negligence cases?

Answer 16

• Actual (but for)
• Proximate

Question 17

What does actual (but for) cause refer to?

Answer 17

There must be a factual connection between the breach and the injury suffered.

Question 18

What must be true for proximate cause?

Answer 18

The harm must be a foreseeable result of the breach.

Question 19

What are some examples of proximate cause?

Answer 19

Examples of harm that is considered foreseeable: (1) medical malpractice that occurs after an accident, (2) harm that occurs during rescue efforts to protect life and property endangered by defendant’s negligence, and (3) a disease or subsequent accident that occurs after an accident.

Question 20

What is the multiple causes issue?

Answer 20

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

Question 21

What is the alternative causes issue?

Answer 21

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

Question 22

True or false: A plaintiff must suffer actual harm to successfully sue in a negligence action.

Answer 22

True

Tip: a plaintiff cannot recover punitive damages or nominal damages in a negligence action.

Question 23

True or false: A plaintiff is not permitted to recover in negligence or strict liability if he has suffered a pure economic loss (i.e., no injury to himself).

Answer 23

True

Tip: in this case, the plaintiff may have a remedy in contract (but not tort).

Question 24

What is comparative negligence?

Answer 24

A judge or jury compares the plaintiff’s fault with the defendant’s fault and assigns percentages to each.

Question 25

What is **pure comparative negligence**?

Answer 25

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

Question 26

What is **partial (modified) comparative negligence**?

Answer 26

If the plaintiff was more at fault than the defendant (or in some states, if the plaintiff and defendant were equally at fault), the plaintiff cannot recover.

Question 27

What is **contributory negligence**?

Answer 27

The plaintiff cannot recover if he was even a little bit negligent unless the defendant had the *last clear chance* to avoid the injury. ## Footnote Do not apply this doctrine on the MBE unless you are told to!

Question 28

What is **assumption of risk**?

Answer 28

If the plaintiff *knew of the risk and voluntarily assumed it*, he generally cannot recover damages. ## Footnote However, some courts will analyze assumption of risk using a comparative fault analysis.

Question 29

What is **joint and several liability**?

Answer 29

In a *joint and several* liability jurisdiction, the plaintiff may recover all of his damages from any single defendant (and the defendant may seek contribution from a codefendant). In a *several* liability jurisdiction, each defendant is liable only for his percentage of fault. ## Footnote Tip: apply joint and several liability on the MBE unless told otherwise.

Question 30

What is the liability of employers for the torts of their **employees**?

Answer 30

Employers or principals are vicariously liable for the torts of their employees or agents that are committed in the scope of employment. If an employer/principal is found liable under this theory, it may seek indemnity (i.e., full payback) from its employee. ## Footnote *Intentional torts* usually are outside the scope of employment unless they were *foreseeable* or they were committed for the *purpose* of serving the employer.

Question 31

What is the liability of principals for the torts of their **independent contractors**?

Answer 31

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

Question 32

What is the general rule regarding **parental** liability for children's acts?

Answer 32

Generally, parents are not vicariously liable for the acts of their children. However, a parent may be directly liable for his own negligence (e.g., failure to supervise).

Question 33

What is **assault** in terms of intentional torts?

Answer 33

Defendant acts with intent to cause a harmful or offensive contact (or imminent apprehension) and an imminent apprehension directly or indirectly results. ## Footnote Tip: Apprehension does not mean fear. Apprehension is knowledge or anticipation of the impending contact.

Question 34

What constitutes **battery**?

Answer 34

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

Question 35

What defines **false imprisonment**?

Answer 35

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

Question 36

What is **intentional infliction of emotional distress (IIED)**?

Answer 36

Defendant intentionally or recklessly engages in extreme or outrageous conduct that causes the plaintiff to suffer severe emotional distress. ## Footnote Tip: The plaintiff does not need to show physical symptoms to prevail. However, the plaintiff must show she suffered “severe emotional distress.”

Question 37

What is **trespass to land**?

Answer 37

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

Question 38

What is **trespass to chattels**?

Answer 38

Defendant intentionally interferes with another’s personal property and harm results. The damages are the cost to repair the property.

Question 39

What is **conversion**?

Answer 39

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

Question 40

What is the defense of **consent** in tort law?

Answer 40

Consent to the act that causes harm may negate liability. ## Footnote It can be express or implied.

Question 41

What is chattel?

Answer 41

Personal property ## Footnote Chattels refer to movable personal property.

Question 42

What is **self-defense**? | In torts

Answer 42

The defendant reasonably believes force is necessary to protect against the unlawful use of force.

Question 43

Define **public necessity** as a defense.

Answer 43

Defendant acts to protect the public from a greater harm that would have occurred had he not acted.

Question 44

What is **private necessity**?

Answer 44

Defendant acts to protect an interest of his own. He is not liable for a tort, but he still must pay for actual damage caused.

Question 45

What is **transferred intent**?

Answer 45

Intent can *transfer* for torts involving assault, battery, false imprisonment, trespass to land, and trespass to chattels.

Question 46

What are the elements of **negligent infliction of emotional distress** (NIED)?

Answer 46

(1) the defendant is negligent, (2) the plaintiff suffers physical symptoms from its emotional distress, and (3) the plaintiff is either in the zone of danger or the plaintiff witnesses a negligent injury to a person closely related to the plaintiff. ## Footnote Note: There are special cases where physical symptoms are not necessary to prove. These include cases where a corpse is mishandled and cases involving erroneous reports of a relative’s death to a plaintiff.

Question 47

What must a plaintiff prove in a **strict liability** case?

Answer 47

In a strict liability case, the plaintiff must prove duty (which is, in this case, absolute), causation, and harm. ## Footnote Tip: in a strict liability case, whether the defendant was acting reasonably is immaterial.

Question 48

Define **abnormally dangerous activities**.

Answer 48

An abnormally dangerous activity is one that creates a foreseeable risk of serious harm even when reasonable care is exercised, and the activity is not a matter of common usage in the community. ## Footnote Tip: examples include blasting, mining, explosives, etc.

Question 49

What is strict liability in relation to **wild animals**?

Answer 49

A defendant is strictly liable for foreseeable harms caused by wild animals. Examples of wild animals include: skunks, bears, and monkeys. ## Footnote Tip: strict liability is not available to a trespasser (the trespasser can sue under a theory of negligence but not strict liability). Tip: Negligence must be shown if the harm is caused by a domestic animal (i.e., a pet or farm animal). Examples include dogs, cats, sheep, honey bees, rabbits, horses, and cows.

Question 50

What are the requirements for **products liability**?

Answer 50

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

Question 51

What are the **types of defects** in products liability?

Answer 51

***Manufacturing defect***: the product departs from its intended design and it is more dangerous than expected. ***Design defect***: The product comes out exactly as the manufacturer intended. However, there is an alternative design that is safer, practical, and cost-effective. ***Lack of warning/instructions***: No warning: If there’s a hidden risk, there should be a warning. If risk is obvious, no warning necessary. Yes warning: examine the size of the warning, color, if there are pictures, etc. to see if it’s adequate.

Question 52

Who bears **liability** regarding **products liability**?

Answer 52

Everyone in the chain of distribution is liable under a strict products liability theory. ## Footnote Tip: pay careful attention to the call of the question to see if you are supposed to apply a strict liability standard or another standard (e.g., negligence).

Question 53

What are the **defenses** regarding **products liability**?

Answer 53

Assumption of risk, comparative negligence, or unforeseeable misuse of a product.

Question 54

What are the requirements for general **defamation**?

Answer 54

General defamation requires four elements: 1. a **defamatory statement** about the plaintiff, 2. an **unprivileged publication** of the statement, 3. **fault** (at least negligence), and 4. **damages**. ## Footnote In *libel* cases (cases where the defamatory statement is written or recorded), damages are presumed.

Question 55

What are the four *slander per se* categories?

Answer 55

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

Question 56

What must a **public figure** prove in defamation cases?

Answer 56

If the plaintiff is a public figure, he also must prove that the statement is false and that the defendant acted with malice. ## Footnote Tip: Memorize the definition of *malice* for public figure cases.

Question 57

What is malice in the context of defamation?

Answer 57

Malice is present when the defendant knows the statement is false or acts with reckless disregard as to whether it is true or false.

Question 58

What are the **defenses** to defamation?

Answer 58

* Consent * Truth * Privileges

Question 59

Define the **privileges** regarding defenses for defamation.

Answer 59

Privileges can be absolute (made during legislative, executive, or judicial proceedings) or qualified (when candor is encouraged). ## Footnote Tip: common examples of when a defendant may have a qualified privilege is when he is speaking as a past employer of the plaintiff for a job reference or if he is speaking to a police officer investigating a crime

Question 60

Which are the **invasions of privacy** in regards to defamation?

Answer 60

(**FAID**) * False light * Appropiation * Intrusion * Disclosure

Question 61

Define **false light** in invasion of privacy.

Answer 61

Defendant widely spreads facts about the plaintiff, which places the plaintiff in a false light that would be offensive to a reasonable person.

Question 62

What constitutes **appropriation** in invasion of privacy?

Answer 62

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

Question 63

What is **intrusion** in invasion of privacy?

Answer 63

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

Question 64

What is **disclosure** in invasion of privacy?

Answer 64

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

Question 65

What defenses can be used against the invasions of privacy?

Answer 65

**Consent** is a defense to all four privacy torts. Defamation privileges apply to false light and disclosure.

Question 66

What are the requisites for **misrepresentation**?

Answer 66

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

Question 67

Define **private nuisance**.

Answer 67

The defendant uses his property in a way that causes a substantial unreasonable interference with the plaintiff’s use or enjoyment of his land. ## Footnote Tip: Do not take into account the plaintiff’s peculiar use of his land. Ask if the defendant’s use of his land would substantially interfere with an average member of the community’s use and enjoyment of his property

Question 68

What is **public nuisance**?

Answer 68

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

Question 69

What constitutes **intentional interference with business relations**?

Answer 69

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