Torts MBE Flashcards
Battery
1) Intent 2) Harmful or Offensive Contact
Assault
1) Intent 2) Reasonable Apprehension of an imminent battery
Trespass to Chattel
1) Intent 2) Interference with use 3) Remedy = Actual Damages
Conversion
1) Intent 2) Substantial Interference with use 3) Remedy = Value of property at Conversion
Trespass to Land
1) Intent 2) Physical invasion of land
Intentional Infliction of Emotional Distress
1) Intent or Recklessness 2) Extreme & Outrageous Conduct 3) Severe Emotional Distress
Bystander Rule IIED
1) Close Family Member 2) Defendant had Knowledge 3) Severe Emotional Distress
Non-Family Member Bystanders IIED
Bystander must suer PHYSICAL harm
False Imprisonment
1) Intent 2) Confined, bounded area 3) Aware of Confinement
Shopkeeper Privilege
1) Reasonable Belief 2) Detained in a Reasonable Manner 3) Reasonable period of time
Negligent Trespass to Land
1) Negligently enter land of another 2) Liable for damage to land
Negligent Infliction of Emotional Distress
1) Negligent Conduct 2) Zone of Danger 3) Severe Emotional Distress & Physical Harm
Bystander Rule NIED
1) Close Family Member 2) Emotional Distress
Mishandling of a Corpse
1) Negligent handling of a corpse 2) No Physical Harm required
Transferred Intent
Defendant intends to commit a tort, but commits 1) A different tort or 2) The same tort against a different person
For transferred intent to apply, both torts must be from the following list
Assault • Battery • False Imprisonment • Trespass to Land • Trespass to Chattel
Consent
1) Implied or Express 2) Cannot exceed Scope of Consent
Self-Defense
1) Reasonable Belief of attack 2) Reasonable Force
Defense of Others
Reasonable Belief third party to be attacked
Defense of Property
1) Reasonable Force 2) Reasonable Belief to stop invasion of land 3) CANNOT use Deadly Force to defend property
Private Necessity
Defense to Trespass • Liable for damages to property
Public Necessity
1) Preventing public harm 2) Not liable for damages to property
Negligence Elements
1) Duty 2) Breach 3) Causation 4) Damages Duty: • Owed to foreseeable Plaintiffs
Standard of Care
Reasonably Prudent Person
Unknown Trespasser
No Duty of Care
Known Trespasser
Warn of Known Dangers
Licensee
Social Guest • Warn of Known Dangers
Invitee
Businesses • Warn, Inspect, & Make
Duty of a Parent
Knew/Should have known that child was likely to cause harm
No General Duty to Rescue, Unless
1) Assumption of Duty 2) Special Relationship
Special Relationship
Common Carrier • Innkeeper/Guest • Teacher/Student • Employer/Employee
Duty of a Child
Other children of same Age, Experience, & Maturity
Duty of a Professional
Similar professionals with the same Education, Training, & Customs
Breach of Duty
Failure to comply with Duty of Care
Actual Causation
But for • Almost always met
Proximate Causation
Foreseeability
Damages
Physical Injury
Intervening Cause
Foreseeable Event • Pay all damages
Superseding Cause
Unforeseeable Event • Cuts off liability • Act of God, Intentional Tort, Criminal Act
NEGLIGENCE PER SE
1) Violation of ordinance/statute 2) Injured party is of protected class 3) Injury is of the type statute was trying to prevent
RES IPSA LOQUITUR
Creates an INFERENCE of negligence, if 1) Accident would not normally occur unless negligence 2) Defendant had Exclusive Control
Attractive Nuisance
Artificial Condition causing Children to Trespass
Elements of Attractive Nuisance
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
Pure Comparative Negligence
Plaintiff’s damages reduced by % of fault
Modified/Modern Comparative Negligence
Plaintiff cannot recover if more than 50% at fault
Contributory Negligence
Plaintiff cannot recover if at fault
Last Clear Chance Exception
Defendant had last clear chance to avoid accident • Defendant did not do so • Plaintiff can recover
Assumption of the Risk
Must have knowledge • Must appreciate the danger
Joint & Several Liability
2 or more people cause single accident • All defendants jointly & severally liable for damages
Contribution
Co-defendants can sue to recoup money
Vicarious Liability
Employer liable for Negligent Employees • Employees acting within Scope of Employment
Independent Contractors - Generally NOT Liable, Unless
1) Abnormally Dangerous Activity 2) Non-Delegable Duty
Non-Delegable Duty
Duties that involve safety or benefit of the public
Indemnification
May seek indemnification from whoever actually caused the damage
Strict Liability
1) Possession of Wild Animals 2) Abnormally Dangerous Activities
Possession of Wild Animals
Non-domesticated animals • Injury that would normally occur • Domestic animals with dangerous propensities
Abnormally Dangerous Activity
Excavation • Dynamite • Toxic Chemicals
Assumption of the Risk
Defense to Strict Liability • Knew & Appreciated the risk
Product Liability
A product breaks or doesn’t work properly
Products Liability - Negligence
Negligence in the chain caused the product to break or not work
Products Liability - Breach of Warranty
Promise about product performance
Merchantability
Product acted as it should
Fitness for a Particular Purpose
Product only works for particular purpose
Strict Products Liability
1) Defective product 2) Sold by commercial seller 3) Foreseeable user 4) Used in manner it was intended
Commercial Seller
In the business of selling the product
Inadequate/Failure to Warn
A type of Defective Product under Strict Products Liability
Defenses to Strict Products Liability
1) Assumption of the Risk 2) Misuse
Private Nuisance
Unreasonable Interference with use/ enjoyment • Objective Standard
Public Nuisance
Unreasonable Interference to public • Brought by Government Official • Private plaintiffs must prove SPECIAL damages
Defamation
1) False Statement 2) About Plaintiff 3) Hurts Reputation 4) Publication 5) Damages
Publication
• HEARD & UNDERSTOOD by third person to be about the plaintiff
Libel
Written or Printed • No Special/Pecuniary Damages
Slander
Spoken • Must prove Special Damages
Slander Per Se
Damages presumed: 1) Profession/Business 2) Chastity of a Woman 3) Crime of Moral Turpitude 4) Loathsome Disease
Defamation - Private Individual
Standard of Proof: Negligence
Defamation - Public Figure
Standard of Proof: Actual Malice • Knowledge or “Reckless disregard of the truth”
Defenses to Defamation
1) TRUTH is an absolute defense to Defamation 2) Privileges
Absolute Privilege
Statements made in the course of Official Proceedings are protected
Qualified Privilege
Statement appears necessary to protect Defendant/Public’s Interest • Honest & Reasonable Belief
False Light
Portray someone in false light
Appropriation
Unauthorized use of likeness or image for profit
Public Disclosure
Public disclosure of a Private Matter • Not “Newsworthy”
Intrusion upon Seclusion
Physical invasion of a private space
Misrepresentation =
Fraud
Intentional Misrepresentation
1) Misrepresentation of Material Fact 2) Scienter 3) Intent to induce reliance 4) Reliance 5) Damages
Negligent Misrepresentation
1) Negligence 2) Special Relationship 3) Detrimental Reliance 4) Damages
Tortious Interference with Contractual Relationship
1) Contract exists 2) Defendant has knowledge 3) Intentional Interference 4) Damages
Malicious Prosecution
1) Criminal Proceeding 2) No Probable Cause 3) Improper Purpose 4) Dismissed in favor of Accused
