Torts - MBE Flashcards

Question

**Negligent Products Liability**

Answer 1

**_Negligent Products Liability_** – A negligence claim based on a defective product requires: 1. Product supplier owes a duty to P - to all foreseeable users - MUST act as a reasonably prudent supplier would for the type of product - liable for all foreseeable misuses of the product 2. Breach of that duty - supplier’s negligence results in a defective product 3. Causation – actual & proximate AND 4. Damages - Negligence MUST be shown - Generally, privity between the parties is irrelevant

Answer 2

**_Intentional & Negligent Misrepresentation_** **Intentional Misrepresentation – Fraud** 1. Misrepresentation of a material fact 2. Scienter – D knew the statement was false 3. Intent to induce P 4. Actual and reasonable reliance by P 5. Damages **Negligent Misrepresentation** 1. False statement of material fact 2. Supplied for the guidance of others in a business transaction 3. D should have known that the information was supplied to guide P in his business transactions 4. D was negligent in obtaining or communicating the false information 5. Actual and reasonable reliance by P 6. The false information proximately caused P’s damages. - **Concealment** – An affirmative act intended to keep another from learning a fact. - Concealment is deemed a misrepresentation. - **Duty to Disclose** – There is NO duty to disclose information UNLESS: 1. a fiduciary relationship exists 2. it’s necessary to correct an earlier mistake 3. active concealment occurs; OR 4. a seller of real property knows material facts that affects the value of the property and the buyer is unaware and cannot reasonably discover

Answer 3

**_Joint and Several Liability_** - If multiple Ds are the proximate cause of a single indivisible harm, then P may recover the ENTIRE amount of damages from any D - BUT, any D who pays more than their share of the damages may bring action against the other Ds for contribution - Applies even though each tortfeasor acted entirely independently - **Contribution** - D may seek contribution from other Ds if he pays more than his share of the liability. - The amount recoverable from each D is based on each’s percentage share of fault. - Contribution is NOT allowed for those who committed intentional torts, even if each tortfeasor was equally culpable - **Indemnification** - A passive tortfeasor can assert its claim against an active tortfeasor to recover the FULL amount it paid (or may have to pay) to P

Answer 4

**_Res Ipsa Loquitur_** - Res ipsa loquitur can be used when the breach element is difficult to prove and the mere fact that an injury occurred can establish breach of duty. The trier of fact may be permitted to infer that D was probably negligent if: 1. the injury is of a kind that typically does not occur in the absence of negligence 2. other possible causes are sufficiently eliminated by the evidence AND - including the conduct of P and third persons 3. the negligence was within the scope of duty D owed to P - the instrumentality that caused the injury was in the defendant’s exclusive control - Res ipsa loquitur allows for P to show to a prima facie case, which will preclude D from being awarded a directed verdict. - If D rebuts the res ipsa showing with evidence that he did exercise due care, it has the same effect as in all other cases - The jury may either: - draw the permissible inference of negligence, finding for P - find that D's evidence overcomes P's res ipsa showing and decline to infer liability

Answer 5

**Comparative & Contributory Negligence** **_Comparative Negligence_** - Divides liability between P and D in proportion to their relative degrees of fault. - P's recovery will be reduced in proportion to the ratio between his own negligence and the total negligence contributing to the accident. - P will not be barred entirely from recovery, even if P's fault is greater than D's. **_Partial Comparative Negligence_** - If P is 50% or more at fault, then P’s claim is barred. - If P is less than 50% at fault, then damages are reduced by the percentage of his own fault. **_Contributory Negligence_** - P’s claim is barred if P contributed to his injury. - Exception #1 → D had the last opportunity to avoid the accident - Exception #2 → D was reckless ★ MBE / MEE Tip → Only apply pure comparative negligence (unless explicitly instructed otherwise).

Answer 6

**Respondeat Superior** - An employer is liable for an employee’s negligent acts if the employee was acting within the scope of the employment. - Employee acts within Scope of Employment when: - Performing work assigned by the employer; OR - Engaging in a course of conduct subject to the employer’s control. **Time, Place, & Purpose Test** - To determine the scope of employment, courts analyze whether the conduct: - Is of the kind the employee is employed to perform - Occurs substantially within the authorized time and space limits; and - Is motivated (in whole or part) to serve the employer. **Intentional Torts** - Generally outside the scope. - EXCEPTIONS: - Act was specifically authorized by employer - Act was driven by a desire to serve employer; OR - Act was the result of naturally occurring frictionfrom the type of employment. **Not Within Scope of Employment** - Conduct is NOT within the scope if it’s unrelated and not intended to serve any purpose of the employer. - BUT see exception below. **Liability if Respondeat Superior Doctrine is Inapplicable** - A principal / employer will be liable for an agent’s acts outside the respondeat superior doctrine if: - Principal intended the conduct / consequences - Principal was negligent or reckless in selecting, training, supervising, or controlling the agent - It is a non-delegable duty; OR - Agent had apparent authority, the agent’s actions taken with apparent authority constitute the tort (or enable it to be concealed), and the third-party reasonably relied on such authority. **Employee vs. Independent Contractor** - Primary focus is whether the principal had the right to control the manner and method in which the job was performed. - Factors → courts analyze the following to determine if a person is an employee or independent contractor: 1. type of work 2. pay (hourly vs. per project) 3. who supplied the equipment/tools 4. degree of supervision 5. degree of skill required 6. if the work benefits the employer’s business 7. extent of principal’s control over work details 8. whether agent/contractor is engaged in a distinct business 9. length of time employed/engaged 10. characterization & belief of relationship; and 11. whether agent was hired for a business purpose. **Liability for Independent Contractors** - Generally, an employer/principal has NO liability for an Independent Contractor’s torts. - Exceptions: 1. Inherently Dangerous Activities 2. Non-delegable duty owed by principal 3. Estoppel – the principal holds out the contractor as his agent, third-party reasonably relied on contractor’s skill, and the third-party suffered harm

Answer 7

**Negligence Causation** - P must show that D’s conduct was BOTH the actual and proximate cause of the injury. **Actual Cause** - The harm wouldn't have occurred but for D's negligence - **Substantial Factor Test** - Deemed an actual cause if it’s a substantial factor in bringing about the injury – even if there are multiple causes **Proximate Cause** - The harm was a foreseeable result of D's breach - D is NOT liable for remote harms caused. - **Intervening Cause** - An act that occurs after the breach that contributes to the harm - Intervening causes that are dependent (a natural reaction to) D’s wrongful acts → are usually deemed foreseeable. - If the intervening cause resulted in an unexpected injury → it’s usually deemed unforeseeable and D is NOT liable - Medical Malpractice → is ALWAYS deemed foreseeable - Criminal Acts → usually NOT foreseeable UNLESS: - D should have anticipated the criminal act; OR - D’s conduct makes the criminal act more likely - Rescuers → are foreseeable so long as the rescue is not done recklessly

Answer 8

**Torts – Consent** - D is not liable for an otherwise tortious act if P consented to D's act. - Consent may be express or implied through words or conduct - CANNOT exceed the bounds of the consent given - P must have capacity to consent - May be withdrawn at any time - P cannot consent to a crime (some courts) - **Apparent Consent** → words/conduct are reasonably understood to be consent - customary practice - failure to object - **Implied by Law Consent** → occurs in special circumstances, such as medical emergencies.

Answer 9

**Affirmative Duty to Act** - Generally, there is NO affirmative to act - EXCEPTIONS: 1. A special pre-existing relationship exists between the parties - parent-child - a parent can be liable for harm caused by the parent’s minor child if they: (1) knew the child needed to be controlled/supervised and (2) had the ability to control/supervise the child - landowner-entrant - psychiatric hospital-patient - common carrier-passengee - business-customer – limited duty to protect from harm, including harm caused by other customers 2. D put P in peril 3. D has already undertaken to rescue P - liable only if it increases the risk of harm or harm is suffered because of reliance on the person providing help 4. Duty imposed by law

Answer 10

**Defamation** - Defamation requires: 1. a false defamatory statement - a statement that tends to harm the reputation of another 2. of and concerning P 3. publication to a third-party who understood it - intentionally or negligently – reasonably foreseeable 4. damage to reputation - If it is about a public figure or a matter of public concern, P must also prove 5. falsity 6. fault by D **Slander** - Slander is an oral defamatory statement - need to prove special damages - UNLESS it’s Slander Per Se 1. impugning business integrity or skill 2. unchastity of an unmarried woman 3. loathsome disease 4. crime of moral turpitude **Libel** - Libel is defamation in a permanent format - DO NOT need to prove special damages - UNLESS: 1. the statement does not fall within one of the slander per se categories 2. defamatory nature is not clear on its face. **Public Official or Public Figure** - MUST also prove actual malice - recklessness or knowledge of falsity - Public Figure = injected themselves into a public controversy or achieved widespread notoriety **Matter of Public Concern** - Private Figure Speaking about a Matter of Public Concern → MUST also prove negligence. **Defenses** **Absolute Privilege** - Complete defense - Applies to statements made → in judicial proceedings, between spouses, by executive branch officials, and during legislative proceedings. **Qualified Privilege** - Applies when (1) the statement is conditionally privileged, AND (2) privilege is not abused (did not act with malice). - Applies to statements → by former/prospective employers (made in good faith for a legitimate purpose), in gov’t reports of official proceedings, during testimony in legislative proceedings, in self-defense, and to warn others about danger/harm.

Answer 11

**Torts – Strict Liability** **Abnormally Dangerous Activity** - An activity that: 1. is not of common usage in the community; AND 2. creates a foreseeable and highly significant risk of physical harm - even when reasonable care is exercised). - D is subject to strict liability **Wild Animals** - Owner is SUBJECT TO strict liability for harm caused regardless of any safety precautions taken - Animal owners are strictly liable for the trespass and resulting property damage caused by their animals (if reasonably foreseeable). **Domestic Animals** - Owner is NOT strictly liable UNLESS he has knowledge of the animal’s vicious propensities - Includes dogs, cats, & farm animals

Answer 12

**Intentional Infliction of Emotional Distress** 1. intentional or reckless conduct - intentional = (1) desires to inflict severe emotional distress; OR (2) knows that such distress is certain or substantially certain to result - reckless = deliberate disregard of a high risk that emotional distress will follow 2. that was extreme and outrageous - transcends all bounds of decency 3. that causes extreme emotional distress (causation) 4. P actually suffers severe emotional distress (damages)

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Torts - MBE Flashcards

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