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My MBE MEE > Torts MBE > Flashcards

Torts MBE Flashcards

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1
Q

Battery

A

1) Intent 2) Harmful or Offensive Contact

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2
Q

Assault

A

1) Intent 2) Reasonable Apprehension of an imminent battery

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3
Q

Trespass to Chattel

A

1) Intent 2) Interference with use 3) Remedy = Actual Damages

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4
Q

Conversion

A

1) Intent 2) Substantial Interference with use 3) Remedy = Value of property at Conversion

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5
Q

Trespass to Land

A

1) Intent 2) Physical invasion of land

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6
Q

Intentional Infliction of Emotional Distress

A

1) Intent or Recklessness 2) Extreme & Outrageous Conduct 3) Severe Emotional Distress

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7
Q

Bystander Rule IIED

A

1) Close Family Member 2) Defendant had Knowledge 3) Severe Emotional Distress

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8
Q

Non-Family Member Bystanders IIED

A

Bystander must suer PHYSICAL harm

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9
Q

False Imprisonment

A

1) Intent 2) Confined, bounded area 3) Aware of Confinement

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10
Q

Shopkeeper Privilege

A

1) Reasonable Belief 2) Detained in a Reasonable Manner 3) Reasonable period of time

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11
Q

Negligent Trespass to Land

A

1) Negligently enter land of another 2) Liable for damage to land

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12
Q

Negligent Infliction of Emotional Distress

A

1) Negligent Conduct 2) Zone of Danger 3) Severe Emotional Distress & Physical Harm

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13
Q

Bystander Rule NIED

A

1) Close Family Member 2) Emotional Distress

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14
Q

Mishandling of a Corpse

A

1) Negligent handling of a corpse 2) No Physical Harm required

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15
Q

Transferred Intent

A

Defendant intends to commit a tort, but commits 1) A different tort or 2) The same tort against a different person

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16
Q

For transferred intent to apply, both torts must be from the following list

A

Assault • Battery • False Imprisonment • Trespass to Land • Trespass to Chattel

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17
Q

Consent

A

1) Implied or Express 2) Cannot exceed Scope of Consent

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18
Q

Self-Defense

A

1) Reasonable Belief of attack 2) Reasonable Force

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19
Q

Defense of Others

A

Reasonable Belief third party to be attacked

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20
Q

Defense of Property

A

1) Reasonable Force 2) Reasonable Belief to stop invasion of land 3) CANNOT use Deadly Force to defend property

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21
Q

Private Necessity

A

Defense to Trespass • Liable for damages to property

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22
Q

Public Necessity

A

1) Preventing public harm 2) Not liable for damages to property

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23
Q

Negligence Elements

A

1) Duty 2) Breach 3) Causation 4) Damages Duty: • Owed to foreseeable Plaintiffs

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24
Q

Standard of Care

A

Reasonably Prudent Person

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25
Q

Unknown Trespasser

A

No Duty of Care

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26
Q

Known Trespasser

A

Warn of Known Dangers

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27
Q

Licensee

A

Social Guest • Warn of Known Dangers

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28
Q

Invitee

A

Businesses • Warn, Inspect, & Make

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29
Q

Duty of a Parent

A

Knew/Should have known that child was likely to cause harm

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30
Q

No General Duty to Rescue, Unless

A

1) Assumption of Duty 2) Special Relationship

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31
Q

Special Relationship

A

Common Carrier • Innkeeper/Guest • Teacher/Student • Employer/Employee

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32
Q

Duty of a Child

A

Other children of same Age, Experience, & Maturity

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33
Q

Duty of a Professional

A

Similar professionals with the same Education, Training, & Customs

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34
Q

Breach of Duty

A

Failure to comply with Duty of Care

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35
Q

Actual Causation

A

But for • Almost always met

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36
Q

Proximate Causation

A

Foreseeability

37
Q

Damages

A

Physical Injury

38
Q

Intervening Cause

A

Foreseeable Event • Pay all damages

39
Q

Superseding Cause

A

Unforeseeable Event • Cuts off liability • Act of God, Intentional Tort, Criminal Act

40
Q

NEGLIGENCE PER SE

A

1) Violation of ordinance/statute 2) Injured party is of protected class 3) Injury is of the type statute was trying to prevent

41
Q

RES IPSA LOQUITUR

A

Creates an INFERENCE of negligence, if 1) Accident would not normally occur unless negligence 2) Defendant had Exclusive Control

42
Q

Attractive Nuisance

A

Artificial Condition causing Children to Trespass

43
Q

Elements of Attractive Nuisance

A

1) Owner knows of Child Trespassers 2) Unreasonable Risk of Harm 3) Children cannot Appreciate the Risk 4) Cost of Remedy is Less than the Danger 5) Owner Fails to Make Safe

44
Q

Pure Comparative Negligence

A

Plaintiff’s damages reduced by % of fault

45
Q

Modified/Modern Comparative Negligence

A

Plaintiff cannot recover if more than 50% at fault

46
Q

Contributory Negligence

A

Plaintiff cannot recover if at fault

47
Q

Last Clear Chance Exception

A

Defendant had last clear chance to avoid accident • Defendant did not do so • Plaintiff can recover

48
Q

Assumption of the Risk

A

Must have knowledge • Must appreciate the danger

49
Q

Joint & Several Liability

A

2 or more people cause single accident • All defendants jointly & severally liable for damages

50
Q

Contribution

A

Co-defendants can sue to recoup money

51
Q

Vicarious Liability

A

Employer liable for Negligent Employees • Employees acting within Scope of Employment

52
Q

Independent Contractors - Generally NOT Liable, Unless

A

1) Abnormally Dangerous Activity 2) Non-Delegable Duty

53
Q

Non-Delegable Duty

A

Duties that involve safety or benefit of the public

54
Q

Indemnification

A

May seek indemnification from whoever actually caused the damage

55
Q

Strict Liability

A

1) Possession of Wild Animals 2) Abnormally Dangerous Activities

56
Q

Possession of Wild Animals

A

Non-domesticated animals • Injury that would normally occur • Domestic animals with dangerous propensities

57
Q

Abnormally Dangerous Activity

A

Excavation • Dynamite • Toxic Chemicals

58
Q

Assumption of the Risk

A

Defense to Strict Liability • Knew & Appreciated the risk

59
Q

Product Liability

A

A product breaks or doesn’t work properly

60
Q

Products Liability - Negligence

A

Negligence in the chain caused the product to break or not work

61
Q

Products Liability - Breach of Warranty

A

Promise about product performance

62
Q

Merchantability

A

Product acted as it should

63
Q

Fitness for a Particular Purpose

A

Product only works for particular purpose

64
Q

Strict Products Liability

A

1) Defective product 2) Sold by commercial seller 3) Foreseeable user 4) Used in manner it was intended

65
Q

Commercial Seller

A

In the business of selling the product

66
Q

Inadequate/Failure to Warn

A

A type of Defective Product under Strict Products Liability

67
Q

Defenses to Strict Products Liability

A

1) Assumption of the Risk 2) Misuse

68
Q

Private Nuisance

A

Unreasonable Interference with use/ enjoyment • Objective Standard

69
Q

Public Nuisance

A

Unreasonable Interference to public • Brought by Government Official • Private plaintiffs must prove SPECIAL damages

70
Q

Defamation

A

1) False Statement 2) About Plaintiff 3) Hurts Reputation 4) Publication 5) Damages

71
Q

Publication

A

• HEARD & UNDERSTOOD by third person to be about the plaintiff

72
Q

Libel

A

Written or Printed • No Special/Pecuniary Damages

73
Q

Slander

A

Spoken • Must prove Special Damages

74
Q

Slander Per Se

A

Damages presumed: 1) Profession/Business 2) Chastity of a Woman 3) Crime of Moral Turpitude 4) Loathsome Disease

75
Q

Defamation - Private Individual

A

Standard of Proof: Negligence

76
Q

Defamation - Public Figure

A

Standard of Proof: Actual Malice • Knowledge or “Reckless disregard of the truth”

77
Q

Defenses to Defamation

A

1) TRUTH is an absolute defense to Defamation 2) Privileges

78
Q

Absolute Privilege

A

Statements made in the course of Official Proceedings are protected

79
Q

Qualified Privilege

A

Statement appears necessary to protect Defendant/Public’s Interest • Honest & Reasonable Belief

80
Q

False Light

A

Portray someone in false light

81
Q

Appropriation

A

Unauthorized use of likeness or image for profit

82
Q

Public Disclosure

A

Public disclosure of a Private Matter • Not “Newsworthy”

83
Q

Intrusion upon Seclusion

A

Physical invasion of a private space

84
Q

Misrepresentation =

A

Fraud

85
Q

Intentional Misrepresentation

A

1) Misrepresentation of Material Fact 2) Scienter 3) Intent to induce reliance 4) Reliance 5) Damages

86
Q

Negligent Misrepresentation

A

1) Negligence 2) Special Relationship 3) Detrimental Reliance 4) Damages

87
Q

Tortious Interference with Contractual Relationship

A

1) Contract exists 2) Defendant has knowledge 3) Intentional Interference 4) Damages

88
Q

Malicious Prosecution

A

1) Criminal Proceeding 2) No Probable Cause 3) Improper Purpose 4) Dismissed in favor of Accused

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