Torts

Question 1

Negligence – Elements of the Prima Facie Case

Answer 1

1. The defendant owes a duty of care to conform to a specific standard of conduct
2. The defendant breached that duty
3. The breach of duty was the actual and proximate cause of the plaintiff’s injury
4. The plaintiff suffered damages to person or property

Question 2

general standard of care

Answer 2

The general standard of care is a reasonable person (average mental ability but the same physical characteristics as the defendant)

Question 3

standard of care – professional

Answer 3

Professionals must exercise the knowledge and skill of a member of the profession in good standing

Question 4

standard of care – children

Answer 4

Children must conform to standard of care of a child of like age, education, intelligence, and experience (except the adult standard applies if the child is engaged in an adult activity)

Question 5

Duty to Rescue

Answer 5

No duty to rescue a person in peril unless D caused the peril or D had a pre-existing relationship with P. The duty that arises is one of a duty to act reasonably (not duty to rescue).

Question 6

Pre-existing relationship Duty to Rescue

Answer 6

Pre-existing relationship includes: (1) familial relationships; (2) common carriers and innkeepers w/ customers; (3) land occupiers and invitees business customers; (4) Employers/employees when employee is acting within scope of employment.

Question 7

Gratuitous Helpers in an Emergency (Rescuers)

Answer 7

If you opt to rescue and you perform the rescue negligently, you are liable. Many states have changed this rule by adding in Good Samaritan laws. (MBE question would have to say the state has a good Samaritan law.)

Question 8

Duty Regarding Negligent Infliction of Emotional Distress

Answer 8

First, establish that D was negligent. P can recover under 3 subcategories:
(1) Near Miss Recovery
(2) Bystander Case
(3)

Question 9

NIED Near Miss Recovery

Answer 9

Near miss recovery is available if P shows the following two things:

(1) P must show he was in a zone of physical danger; and (2) there is subsequent physical manifestations of distress.

Question 10

NIED Bystander Case

Answer 10

A negligent defendant will cause serious injury or death to someone that is a nonparty in the lawsuit. Plaintiff may recover by showing:

(1) P and the direct victim must be close family members; and
(2) P was on the scene and witnessed the injury to the victim in real time;

Question 11

NIED Business Relationship Cases

Answer 11

P and D are in a pre-existing business relationship where careless performance is highly likely to cause emotional distress. (Emotional distress should be foreseeable. If a lab screws up, foreseeable to cause distress. If dry cleaning messes up, not foreseeable).

Question 12

Res Ipsa Loquitur

Answer 12

To relieve P from having to show Breach, P must show:

(1) Accident that occurred is of the type/sort that does not normally occur absent someone’s negligence;
(2) This type of accident is normally due to negligence by someone in D’s position.

Question 13

Actual/Factual Cause (But-For Test)

Answer 13

But-For Cause Test: But-for the breach, P would not be injured as of today. D would try to argue, even if I didn’t do X, the injury to P would still have occurred.

Question 14

Actual/Factual Cause with Multiple Defendant Causation Tests:

Answer 14

Merged/Joint-Cause scenarios applies the Substantial Factor Test: D’s conduct was a substantial factory in the injury P suffered.

Unascertainable/Alternative Cause uses Burden Shifting Test: Where there are two acts, but only one caused the injury and the specific act that did so is unascertainable, then the burden of proof regarding legal cause is shifted to the multiple D’s. (2 D’s shot at a bird and 1 hit P.)

Question 15

Foreseeable consequences of foreseeable intervening events

Answer 15

(1) Intervening Medical Negligence;
(2) Intervening Negligent Rescue;
(3) Intervening Protection/Reaction Forces;
(4) Subsequent Disease or Accident

Question 16

Egg Shell Skull Doctrine

Answer 16

P will recover from all harm suffered even if it is surprisingly great in scope. This rule applies to every tort, but is most commonly seen with Negligence.

Question 17

Manufacturing Defect

Answer 17

Exists if the product differs/departs from all of the others which came off of the same assembly-line which makes it more dangerous than consumers would expect

Question 18

Design Defect

Answer 18

Where all products in the line are the same BUT they ALL have certain dangerous propensities.

The costs of a design outweigh the benefit of the design such that a reasonable person would not put it out on the market.

D is liable if P can show that a hypothetical alternative design is safer, economical, and practical.

Question 19

Inadequate Warning Defect

Answer 19

Product may be defective as a result of manufacturer’s failure to give adequate warnings as to the risks associated with using the product. Only applies if the danger was not warned against and is not apparent on its face. Look at the warning and decide whether it is adequate or could have been improved upon (placement, language, complicated, etc).

Question 20

Private Nuisance

Answer 20

A substantial, unreasonable interference with another private individual’s use or enjoyment of property that he actually possesses or to which he has a right of immediate possession

Question 21

Slander Per Se Categories

Answer 21

(1) any statement relating to P’s business or profession; (2) serious crime (honestly or violence); (3) imputes unchastity to a woman; (4) loathsome disease.

Question 22

Appropriation of P’s Name or Picture

Answer 22

D uses P’s name or image without permission for commercial advantage. There is a newsworthiness Exception if using P’s name/picture for news.

Question 23

Intrusion Upon P’s Affairs or Seclusion

Answer 23

Invasion of P’s seclusion in a way that would be highly offensive to a reasonable person.

Question 24

False Light

Answer 24

Widespread dissemination of a material misrepresentation about P that would be objectionable to a reasonable person.

Question 25

Public Disclosure of Private Facts

Answer 25

Widespread dissemination of confidential/private information about P which is offensive to a reasonable person of ordinary sensibilities

Question 26

Common Law Defamation

Answer 26

(1) Defamatory statement that specifically identifies P; (2) D must publish that statement; (3) P may need to prove special damages. (Damages are presumed in cases of Libel and Slander Per Se, but the more you prove the more you get.)

Question 27

Abnormally Dangerous Activity

Answer 27

(1) the activity creates a foreseeable risk of serious harm even when reasonable care is exercised; AND (2) the activity is not a matter of common practice in the community. (Blasting, Biological or Chemical Material, and Nuclear Energy or Radiation.)

Note: Safety precautions taken does not matter because D is strictly liable.

Question 28

Products Liability Elements

Answer 28

(1) D is a merchant that routinely deals with goods of this type; (2) the product was defective when it left D’s control; (3) P must show product was not altered after leaving D’s hands (normally presumed if product travelled in ordinary channels of distribution - no presumption for used goods); (4) P must be making foreseeable use of the product at the time of the injury (includes foreseeable misuse).