Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

MBE Weak Areas > Torts (from outline) > Flashcards

Torts (from outline) Flashcards

1
Q

A duty is owed to _____ plaintiffs that are ____ endangered by the defendant’s negligent conduct

A

Foreseeable; foreseeably

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Rescuers are _____ when the defendant negligently put themselves or a third person in peril

A

foreseeable plaintiffs

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

The firefighters rule states that firefighers and police officers cannot recover from injures caused by ___-

A

the inherent risks of their jobs

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

To prove negligence, a plaintiff must show there was a duty, breach, causation (_____) and damages

A

actual and proximate

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

A P must show that D breached its __

A

duty of care

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

The two types of causation in negligence that must be present are

A

actual (but-for) and proximate (forseeable)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Actual (but-for) causation is when there is a ____ between the breach and the injury suffered

A

factual connection

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Proximate cause exists when the harm is a _____ result of the breach

A

foreseeable

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Examples of harms considered foreseeable include:

A

(1) medical malpractice that occurs after an accident, (2) harm that occurs during rescue efforts to protect life and property endangered by D’s negligent conduct, and (3) a disease or subsequent accident that occurred after an accident.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

When you have 2 or more defendants, in determining who is negligent, use the ____ test

A

substantial factor test

which says if a D’s breach was a substantial factor in causing the harm, the D is liable

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

For an “alternative cause” scenario, the P must show that ALL potential defendatns are joined in the lawsuit and that all D’s are negligent.

The burden will shift to ______

A

each defendant to show its breach of duty was NOT the actual cause

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

An intervening cause is a subsequent injury that occurs after the original injury, and it is a ______

A

normal consequence of the original injury

AKA foreseeable type of harm

if this exists, then the original P will be held liable for his original injury

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

A superseding cause occurs when an injury occurs after the original injury that is _______

A

unforeseeable

this cuts off the original defendant’s liability, so he/she will NOT be held liable for those damages

Examples of unforeseeable things:
- acts of god
- intentional torts
- crimes
- and ANYTHING THE DAMN FACT PATTERN TELLS YOU is unforeseeable

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Can a plaintiff recover punitive or nominal damages in a negligence action?

A

no

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Name 3 defenses to negligence (CAC)

A
  1. Comparative Negligence
  2. Contributory Negligence
  3. Assumption of the Risk
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

For pure comparitive negligence, the P can recover ____. Plus, his damages are simply reduced by his percentage of fault

This is the default on MBE

A

no matter how negligent he is!!!!

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Partial (modified) comparative negligence is when a P is more at fault than the D, the P ________ recover

A

cannot

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Contributory negligence is when the P CANNOT recover if he was even A LITTLE BIT NEGLIGENT (he contirbuted to the negligence) UNLESS the D had the _______ to avoid the injury

A

last clear chance

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Assumption of the risk is a ddefense to negligence if the P ______ of the risk and _____ assumed it, then he CANNOT recover damages

A

Knew; voluntarily

only defense for strict liability cases

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Children are held to the standard of care to a child of

A

similar age, experience, and intelligence, UNLESS engaged in an adult activity

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Professionals are held to a _____ standard of care to an average member of their profession in good standing

A

national

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Doctors have a duty to disclose risk of treatment to enable a patient to give _____

A

informed consent

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

An undiscovered trespasser is one whom the land owner does not know or ____

The duty of care owed to an undiscovered trespasser is ____

A

should not know of

NO DUTY. Ha almost tricked you there

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

A discovered/ anticipated trespasser is one whom the landowner knows or should know is trespassing.

The Duty owed to an anticipated trespasser is to ____ or make safe ______ artificial conditions the landowner KNOWS OF

A

Warn of; unreasonably dangerous

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

a licensee is one who enters the land with the possessor’s permission for their own ____business (social guest)

The duty owed to a licensee is to ______ or make safe all _____ the land owner KNOWS OF

A

purpose

warn of; HIDDEN DANGERS

There is NO DUTY TO INSPECT

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

An invitee is one who is invited onto the property for the owner’s own benefit (like customer at mall open top ublic)

The duty owed to an invitee is to warn of or make safe ______ they should know of or ______

A

All dangers

Should know of

Duty to inspect - yes!

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

Trespass to land is the physical act of _____ the land of another

A

entering

Conscious act of stepping onto that land.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

Do you have to damage the land for trespass to land?

A

no

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

IIED - is physical harm required

A

NO

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

IIED requires that the D act with intentional or ____ conduct (knew or should have known) causing severe _____

A

Reckless (malicious)

emotional distress

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

Bystander cases of IIED scenario 1:

The bystander is a ____ of the P, the D KNOWS that the person is there, and the bystander suffers ____

A

close family relative

emotional distress

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

Bystander cases of IIED scenario 2:

The bystander is _____ a family member of P, but that person suffers _______

A

NOT a family member

PHYSICAL HARM

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

False imprisionment is when the defendant acts with the ____ to confine or restrain P to a BOUNDED area, actual confinement occurs, and P either ______ or is hurt by it

Shopkeeper privilege

A

intent

knows of the confinement

Merchant has reasonable suspicion that someone is stealing from them, then they can be detained for reasonable amount of time

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

Assault requires that the P demonsrtate that he ______ a harmful or offensive touch that was ____

A

reasonably apprehended

imminent

Apprehension does NOT mean fear. Apprehension is knowledge or anticipati

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
35
Q

Battery is when the D acts with the ____ to cause ____ contact, or with a ______ and a ____ contact directly or indirectly results

“Substantial certainty” element for battery liability

A

intent

harmful or offensive

knowledge that a harmful contact would occur,

harmful or offensive

There is no rule of tort law stating that a plaintiff is prohibited from pursuing claims for battery and products liability on the basis of same set of facts

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
36
Q

Negligent trespass to land occurs when someone enters into another’s land ________and there is __________

A

Negligently

Damage

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
37
Q

NIED occurs when the D acts negligently, the P is in the _______, causing D BOTH severe emotional distress AND ____

A

zone of danger

PHYSICAL HARM

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
38
Q

Bystander theory of NIED

If the bystander is a _____ present at the scene and they suffer ____ then they can recover.

Does the D have to KNOW that the bystander was there?

A

close family member

emotional distress

NO

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
39
Q

If someone acts negligently in the care/ handling of a corpse, and P suffers ____, then P can sue for NIED without showing ____

A

emotional distress

physical harm

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
40
Q

Defenses to intentional torts include 4

A
  1. consent
  2. self defense
  3. public necesssity
  4. private necessity
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
41
Q

Can you have implied consent?

A

Yes, like you are playing football game. but it must not go BEYOND the scope of the consent.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
42
Q

Self defense is a defense to intentional torts if you have _____ that someone will hurt you, and you can apply _____back at that person

A

reasonable belief

same force

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
43
Q

Defense of others is a defense to intentional torts as long as there is ______ that the defense is necessary to protect a third person

A

reasonable belief

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
44
Q

Defense of property is allowed to defend property as long as there is _____ that the defense will stop the thing on the land

A

reasonable belief

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
45
Q

You cannot use Deadly force to protect property UNLESS there is a ____ to the person’s ______

A

threat

own saftey

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
46
Q

Necessity is a defense to intentional tort.

Private necessity, it is a defense if you must enter someone else’s property out of necessity. If it is _____. However, even though this is a defense to the tort, you must still pay for _____ to the property

A

necessary to protect yourself

damages

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
47
Q

Public necessity is when someone must come onto your property to prevent a greater public harm.

Are you liable for any damage to the property?

A

NO

48
Q

Misrepresentation occurs when there is (1) a material misreprsentation by the D,(2) the D ____ that this statement was false, or said it with _____ to the truth, and (3) he had the ____ to induce the misrepresentation, and (4) the P relied on it and suffered ____

A

(1) knew; reckless indifference
(3) Intent
(4) pecuniary damages

49
Q

A private nuisance is when the D uses the property in a way that causes a _____ with P’s use or enjoyment of his land

DO you take into account P’s peculiar use of the land?

A

substantial unreasonable interference

No. Ask if the D’s use of the land would substantially interfere with an average member of his community’s use and enjoyment of his property

50
Q

A public nuisance is when the D unreasonably interferes with the _____of a community.

To sue successfully on a public nuisance, the p must suffer

A

Healthy, saftey, or morals

unique damages

51
Q

An attractive nuisance is when the P must show that there was a dangerous condition on the land that the owner ____aware of or ______ aware of, the owner _____ or _____ that children might trespass, and that the condition is likely to cause ___

A

is; should

knows, should know

injury

52
Q

In cases of negligence per se, P can prove duty + breach if P can show that D violated a ____ without exclude and _____ the particular harm that the ____ was trying to protect against, and the person harmed was in the _____the statute was aimed to protect and sustained the right _____

A

statute; statute

class of persons

injury

53
Q

in cases of res ipsa, the jury can _____that negligence occured when the thing that happened is something that does not normally occur in _______, and the D was in_____

This creates a ______ of negligence

A

infer

the absense of negligent conduct

exclusive control

rebuttable presumption

54
Q

Does the exclusive control element exist in medical res ipsa cases?

A

no

55
Q

conversion is when the D ______with another’s property and a ______ harm results.

**The DAMAGES for the intentional tort of conversion is the _____ of the property ______

A

intentionally interfers

serious and substantial

fair market value

at the time of the conversion

It doesn’t matter whether the actor knows that an item is in another’s possession

56
Q

trespass to chattels is when D _______ with another’s personal property and ____ results (this is NOT _____)

The DAMAGES for the intentional tort of trespass to chattels is the cost to _____ the property

A

intentional interferes

harm

substantial

repair

57
Q

an abnormally dangers activity is one that creates a ______risk of harm even when reasonable care is exercised, and the activity is NOT of _____ in the community

(i.e., blasting, mining, explositves)

A

foreseeable

common

58
Q

A defendant is strictly liable for the foreseeable harm by wild animals

A

yeah just know this

59
Q

under a strict liability theory of products liability, the defendant is a commercial supplier, and there must be PROOF that the product is defective at _____ without

The two types of product liability theories are (1) manufacturing defect, and (2)

A

the time it left the defendatn’s hands

substantial alteration

(2) design defect

60
Q

For a manufacturing defect, the product must have departed from its __ and it is more dangerous than expected.

A

intended design

61
Q

For a design defect, the product came out correctly, but there is an _____ that is safer, more practical, and more _____

A

alternative design

cost efficient

62
Q

Here, there was a feasible saftey design that would have prevented the worker’s injury. The model without the saftey device was sold at a slightly reduced price, indicating that it was ___ to include the saftey device for a small price

A

feasible

63
Q

When it is feasible to install a saftey device, a manufacturer does NOT fulfull its obligation to _____ by warning the purchaser that the product is unsafe

A

make a safe product

64
Q

Under a theory of strict product liability, _____commercial supplier in the chain of distribution is liable for the injuries caused by defective or unreasonaby dangerous product sold

A

ANY

65
Q

assumption of the risk may be a defense where a plaibntiff engaged in voluntary and ___ conduct and used the product despite discovering of the defect and being ____ of the danger

A

unreasonable
aware

66
Q

A product is _____ if it FAILS to include a feasible saftey device that would prevent injuries forseeably incurred in ordinary use

A plaintiff can recover on a design defect by prevailing on a risk-utility analysis, typically by demonstrating the existance of an ___ design alternative

A

defective
economically

67
Q

Defenses to strict products liability include: _____, comparative negligence, or _______

A

assumption of the risk

unforeseeable misuse of the product

68
Q

General defamation requires a showing of (1) a defamatory statement about the P, an (2) ____, (3) fault (at least negligence), and (4) ___.

For libel cases (writen/ recorded statement) damages are ____

A

(2) unprivileged publication
of the statement,
(4) damages

presumed

69
Q

If you have a public figure trying to sue under defamation, the P must prove that the statement is _____ and the D acted with _____

______ is present when the D knows the statement is false or acts with reckless disregard to its falsity

A

false

Malice

70
Q

Defenses to defamation cases include

A

consent, truth, privileges (can be aboslute or qualified)

71
Q

___ is a defense to all four privacy torts

A

consenet

72
Q

False light is when the D widely spreads facts about the P that places P in a false light + ___

A

offensive to a reasonable person

73
Q

appropriation is when the D uses P’s name or likeness in an _____ way to advertise a product

A

unauthorized

74
Q

intrusion upon seclusion is when D intentionally pries or intrudes into a private place in a way that would be ____

A

offensive to a reasonable person

75
Q

Disclosure of private facts is a privacy tort in which D disseminates or publishes private information about the P that would be ___

A

highly offensive to a reasonable person

76
Q

Whenever a person engages in an activity, he is under a legal duty to act as a ____

A

reasonably prudent person engaged in the same or similar activity

77
Q

Under the doctrine of respondeat superior, an employer is vicariously liable for the tortious acts of his employees when they are within the

A

scope of employment

78
Q

In a negligence case, evidence of custom, usage, or industry standards, while relevant, is NOT ____ of negligence

A

dispositive

79
Q

Proximate cause is present here because the harmful result that has occured was within the range of foreseeable consequences that could result from ______

A

the negligent thing the D did

80
Q

a tortfeasor takes his victim

A

as he finds her

AKA the fact that the extent or severity of harm was not foreseeable does NOT relieve the defendant from liability

81
Q

establishign the elements of an IIED claim reuqires showing both that the D ____ to cause severe emotional distress and that the D’s conduct was _____ and _____

A

intended

extreme and outragerous

82
Q

whether a D’s conduct was reasonable under the circumstances is irrelevant if a D intended to make a ____ or offensive contact with the P

A

harmful

But it would be relevant in a negligence action

83
Q

in a battery claim the P must show that some sort of _____ contact occured

A

bodily

84
Q

a lack of privity is not a barrier ot negligence claims based on _____

A

manufacturing products

85
Q

anyone foreseeably put at risk by a defective product and actually injured by the products defective condition may sue for ____

A

negligencew

86
Q

if the company had owed a duty to the homeowner, it could argue that the cousin’s actions were a proximate cause of the homeowner’s loss

BUT a stronger defense is that the company owed _______ to the homeowner

A

no duty

87
Q

a duty of a landowner for dangerous artificial conditions exists only where the owner has REASON to know that trespassers are in _______to the condition and that they are ____ to appreciate the risk

A

dangerous proximity

unlikely.

Even then - the duyt is only to exercise reasonable care to WARN the trespassers of the danger

88
Q

for the condition on land to be considered an attractive nuisance, there must be evidence that the possessor has REASON to know that children are likely to trespass, and evidence that the P did ______ the risk involved

A

not appreciate

89
Q

the corporation will prevail because the obviousness of the risk, couples with the warning sign, would have been _____ by the “bright 9 year old child_

A

appreciated

90
Q

if a nuisance has no utility but substantially interferes with the neighbor’s use and enjoyment of his property, then ______ is available as a remedy

A

injunction

91
Q

does a nuisance have to be continuous to substantially interfere with the neighbor’s use and enjoyment of his property?

A

no it does not have to be continous

92
Q

a nuisance is a tortious harm that interferes with either private property rightrs or ____ rights

A

public

93
Q

a private nuisance is a____interference with another private indivdiaul’s use or enjoyment of property that is offensive, inconvenient, or annlying to an average person of the community

A

substantial, unreasonable

94
Q

To prevail on a nuisance claim, a plaintiff must demonstrate that the nuisance is an unreasonable interference by showing that the injury outweighs the __ of the D’s condult

A

utility

95
Q

When the nuisance cannot be removed without undue burden, and the nuisance has utility, damages for the _____ of the affected plaitnfif may be ordered

A

reduction in property value

96
Q

private nuisance is a substantial, _____ interference with another’s use or enjoyment of property. The person claiming nuisance must actually ___, or have a right of immediate possession to the property

A

unreasonable
possess

97
Q

A substantial interference is an interference that is offensive or annoying to the average person in the community - the plaintiffs _____ are irrelevant

A

hypersensitivities

98
Q

to establish a prima facie case of tortious interference with a contracty, the plaintiff must prove (i) the existance of a valid contractual relationship between the plaintiff and a thrid party, (ii) that the defendant KNEW of the relationship or expectancy, (iii) that the defendant intentionally _______ and thereby induced a ____ or termination of the relationship or expectancy; and (iii) the P differed damage as reuslt

A

interfered
breach

99
Q

because a tortious interference claim involves an interference in a contractual relationship between the P and a third party, it CANNOT be brought by a P against a D with whom __-

A

the P has contracted

100
Q

courts have historically held that causing property owner to view unsighly things from their property does not by itself establish the sort of ____ with the use and enjoyment of property that is necessary for ______ liability

A

unreasonable interference
nuisance (private)

101
Q

Despite the fact that teh seller just sold the home, he _____ of the dangerous condition of the roof and the forseeablability of harm to persons outside the premises from windswept falling tiles. Instead, he left the dangerous conditions without taking precautionary measures to protect against dislodged tiles

A

was or should have been aware

*It was IRRELEVANT that the seller was no longer the owner or occupier of the house. The seller’s negligent conduct was the breach of his duty of care and proximately caused the pedestrian’s injuries

102
Q

a possessor of real proeprty’s duties continue even ____ a sale - the seller still owed a duty to third parties until the buyer has a reasonable opportunity to discover the nonobvious dangerous on the property

Thus, the seller’s duty to pedestrians in this question remains because it is merely the day after the sale, and slates that blow off windstorms are a dangerous, nonobvious condition that the seller ______ from prior windstorms

A

AFTER
knew about

103
Q

land owners owe multiple duties. When selling property, these duties continue even ____ - the seller still owes a duty to third parties until the buyer has a reasonable opportunity to discover the nonobvious dangerous of the property

A

after the sale

104
Q

ordinary contrinutory negligence is NOT a defense in a strict products liability action where the P merely _______ or guard against its existance, or where the P’s misuse was reasonable foreseeable

A

failed to discover the defect

105
Q

Assumption of the risk is a defense in a SL case when the P engaged in _______ and _____ conduct and used the product despite discovering the defect and being aware of the danger

A

voluntary + unreasonable

106
Q

under joint and several liablity, the ENTIRE AMOUNT can be collected from __of the defendants. That defendant, in turn, can seek to recover a proportional share of the damages from the other defendants.

A

ANY ONE

107
Q

under ________ negligence principles, a P that is even 1% at fault may NOT recover

A

contributory

108
Q

a limitation on the contirbutory negligence bar is when the D had the “_______” to avoid the harm - and in that situation, the P claim is NOT barred

A

last clear chance

109
Q

the issue in this question is economic damages of a third party without accompanying physical harm.

Normally, pure economic loss may NOT be recovered by a third party as a matter of ____.

That is the type of harm the supporting actor is asserting in this question

A

public policy

110
Q

Does the actual DEFENDANT have to forsee the harm cased?

A

No. It only has to be foreseeable as a general matter.

It is foreseeable that harming one indiciual would cause his colleague to suffer loss of revnue or be fired

111
Q

are punitive damages recoverable in negligence cases?*

A

NO

NoPe

Negligence = NO punitive damages

*Unless additional proof is offered that the defendant was wanton, and willfull, reckkless, or malisious

112
Q

are punitive damages generally recoverable in intentioanl torts?

A

Yes

PIT

Punitive = Intentioanl torts

ex:
Assault, Battery

113
Q

As a common carrier, the airlines owes a duty to its passeners to furnish assistance when they are subject to danger, especialyl when its an result of conditions created by the airline that cause a foreseeable risk of harm.

Here, the flight attendant served the man a significant amount of booze, causing him to become intoxicated and agitated, and she did NOTHING when he became violent.

This was a breach of the affirmative ______ from such foreseeable risk of harm

A

duty to protec the plaintff

114
Q

in special situations like common carriers, there is an _______ to protect passengers from foreseeable risks caused by its own conditions

A

affirmative duty

115
Q

the motorist’s motion for a directed verdict should be granted because a person who is unconscious is ____ for the acts he had no control over unless it was FORESEEABLE and precautions were not taken

A

not liable

116
Q

a directed verdict is a ruling entered by a trial judge after determining that there is no ___(LSEB) for a reasonable jury to reach a different conclusion

A

legally sufficient evidentiary basis

117
Q
A

MBE Weak Areas (17 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions