Torts MBE Flashcards
Statute—negligence per se:
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.
Custom generally is evidence of?
In professional malpractice cases, it is?
Custom generally is evidence of duty of care.
In professional malpractice cases, it is conclusive evidence.
Duty to control third parties: General rule
Special relationship exception:
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).
Landowner; Duty owed to an undiscovered trespasser generally
Undiscovered trespasser (a person the premises possessor does not or should not know of): No duty of care is owed. However, the premises possessor cannot act wantonly or willfully.
Landowner: Duty to discovered trespasser?
Discovered trespasser (a person the premises possessor knows or should know is trespassing):
The premises possessor must warn of or make safe unreasonably dangerous artificial
conditions that it knows of.
Duty owed to Licensee (eg. Social guest)
Licensee (social guest): the premises possessor must warn of or make safe all concealed dangers that it knows of.
Duty to Invitee (one that enters a public place or business):
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.
breach of duty
A plaintiff must show that the defendant breached its duty of care.
Res ipsa loquitur:
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.
There are two types of causation that must be present
—actual (but for) and proximate.
Actual (but for) cause:
there must be a factual connection between the breach and the injury suffered.
Proximate cause:
the harm must be a foreseeable result of the breach.
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.
Multiple causes: If there are two or more defendants, use the what type of test for actual cause?
substantial factor test. If a defendant’s breach was a substantial factor in causing the harm, the defendant is liable.
Alternative causes:
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.
A plaintiff must suffer actual harm to successfully sue in a negligence action.
However, can a plaintiff recover punitive damages or nominal damages in a negligence action?
No, a plaintiff cannot recover punitive damages or nominal damages in a negligence action.
A plaintiff is not permitted to recover in negligence or strict liability if he has suffered a pure _________ loss (i.e., no injury to himself).
economic loss
Tip: in this case, the plaintiff may have a remedy in contract (but not tort).
Comparative negligence:
a judge or jury compares the plaintiff’s fault with the defendant’s fault and assigns percentages to each.
Pure comparative negligence:
The plaintiff can recover no matter how negligent he is. His damages simply are reduced by his percentage of fault.
Tip: this is the default on the MBE unless otherwise stated.
Partial (modified) comparative negligence:
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.
Contributory negligence:
The plaintiff cannot recover if he was even a little bit negligent unless the defendant had the last clear chance to avoid the injury.
(Do not apply this doctrine on the MBE unless you are told to!)
Assumption of risk:
If the plaintiff knew of the risk and voluntarily assumed it, he generally cannot recover damages. (However, some courts will analyze assumption of risk using a comparative fault analysis.)
Joint and several liability:
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.
Tip: apply joint and several liability on the MBE unless told otherwise.
Employees and other agents: Respondeat Superior generally
Intentional torts?
Employers or principals are vicariously liable for the torts of their employees or agents that are committed in the scope of employment.
(Note: intentional torts usually are outside the scope of employment unless they were foreseeable or they were committed for the purpose of serving the employer.) If an employer/principal is found liable under this theory, it may seek indemnity (i.e., full payback) from its employee.
Independent contractors: general rule
exception
A principal is generally not liable for the torts of his independent contractors.
However, a principal is liable if the duty is non-delegable or the activity is inherently dangerous.
The principal also may be liable for his own negligence in hiring, firing, or supervising the contractor. Tip: a duty generally is non-delegable if it involves safety.
