Torts MBE Flashcards
Is conversion a proper claim if the person claiming conversion was able to repair the property?
No because then that person was not totally deprived of the benefit of the property
A defendant is liable for conversion if he intentionally commits an act depriving the plaintiff of possession of her chattel or interfering with the plaintiff’s chattel in a manner so serious as to deprive the plaintiff of the use of the chattel.
What is trespass to chattels?
A defendant commits trespass to chattels if the defendant
* intentionally interferes with the plaintiff’s right of possession by
* * dispossessing the plaintiff of the chattel or
* * using or intermeddling with the plaintiff’s chattel
* * * Intermeddling with a plaintiff’s chattel requires the defendant to make physical contact, whether direct or indirect, with the chattel.
In cases of use or intermeddling, the plaintiff may recover only when there are actual damages.
punitive damages may be available, as the neighbor’s conduct was willful and wanton
Can both personal injury and property damage be grounds for strict products liability action?
YES
any foreseeable user of a defective product who is personally injured or whose property is harmed by the product may maintain a strict liability action.
When is slander brought?
A plaintiff may bring an action for slander, which typically is spoken rather than written defamation, if
(i) the defendant’s defamatory language,
(ii) is of or concerning the plaintiff,
(iii) is published to a third party who understands its defamatory nature, and
(iv) it damages the plaintiff’s reputation. For matters of public concern, the plaintiff is constitutionally required to prove fault on the part of the defendant.
PUBLIC OFFICIAL OR PUBLIC FIGURE
If the plaintiff is either a public official or a public figure, then the plaintiff must prove actual malice.
Under the actual malice standard for defamation which applies to public figures, what is needed to establish a reckless disregard for the truthfulness of a statement?
the plaintiff must prove that the defendant entertained serious doubts about the statement’s truthfulness; mere failure to check facts is not sufficient.
When is a citizen’s arrest proper?
a private actor is privileged to use force (e.g., commit a battery or false imprisonment) to make an arrest in the case of a felony if
* the felony has in fact been committed and
* the arresting party has reasonable grounds to suspect that the person being arrested committed it.
If private actor makes reasonable mistake as to identify ot he felon —> privilege is still recognized
If private actor makes reasonable mistake as to the commission of the felony —> privilege not recognized
Do special damages need to be proven for slander? What about for slander per se?
YES for slander
No for slander perse UNLESS it is a public official/figure then they must prove special damages unless they establish actual malice
List the elements for battery. Does the defendant need to intent to cause harm or physical injury?
A defendant commits battery when the defendant (i) intends to cause contact with the plaintiff’s person, (ii) the defendant’s affirmative conduct causes such contact, and (iii) that contact causes bodily harm or is offensive to the plaintiff.
NO a defendant must only intend to cause contact with the plaintiff’s person
Explain the rules regarding excavation and lateral support
A landowner has a right to lateral support from adjoining land.
If adjoining land in NATURAL STATE —> a landowner who excavates on his own land is strictly liable for any damage to the adjoining land caused by the excavation
If the adjoining land has been IMPROVED —> the excavating landowner is strictly liable for any damage caused by the excavation only if the land would have collapsed in its natural state
* If improvement contributed to the collapse –> adjoining landowner can only recover if excavating landowner was negligent
Intra-family liability is abolished in most states, what does that mean?
close family members are not immune from torts from each other and their fault is not imputed to each other
Can evidence of custom in a community or an industry be iffered to establish the proper standard of care?
YES
Liability for misrepresentation occurs when a representation by the seller about a product induces reliance by the buyer. The plaintiff must show
(i) the defendant is a seller engaged in the business of selling such products; (ii) misrepresentation must be of a material fact; (iii) intent to induce reliance of the buyer; (iv) justifiable reliance, (v) actual reliance; and (vi) proximate cause and damages.
Strict products liability claim may be brought by a plaintiff under multiple different theories: (i) intent; (ii) negligence; (iii) strict liability; (iv) implied warranties; and (v) express warranties.
The prima facie case for a products liability claim based in strict liability includes
(i) a commercial supplier of a product;
(ii) producing or selling a defective product;
(iii) actual and proximate cause; and
(iv) damages
The plaintiff must prove that the defect existed when the product left the defendant’s control.
For liability to attach, the product must also reach the plaintiff without substantial alteration
What is strict liability and when is it triggered?
Strict liability requires proof that: (i) the nature of the defendant’s activity imposes an absolute duty to make safe; (ii) the dangerous aspect of the activity is the actual and proximate cause of the plaintiff’s injury; and (iii) the plaintiff suffered damage to person or property. An activity that is considered “abnormally dangerous” will trigger strict liability. An activity will qualify as abnormally dangerous if it involves a substantial risk of serious harm to a person or property even when reasonable care is exercised.
Under nuisance, if a plaintiff “Came to the nuisance” because they knew of the actions giving rise to the nuisance claim before they bought a house then they assumed the risk and thus
Chances of recovery may go down but they may still have a claim
