Torts MBE Approaches Flashcards
Negligence Question
Duty?
Breach?
Causation?
Damages?
Duty of Care
Did D owe a duty to P?
D owes a duty of care to all foreseeable Plaintiffs.
Standard: Reasonable person
- Except: professionals, children, emergency situations
- Except: Premises liability facts
- Except: Negligence per se
Breach of Duty
“How should the court rule on the motion?”
Is there any reasonable argument that D/P acted reasonably/unreasonable? Is there any evidence justifying taking the case away from the jury?
NEGLIGENCE PER SE:
- Criminal statute designed to prevent the kind of harm sustained by the plaintiff
- Plaintiff is within the class of persons protected
- ONLY ESTABLISHES duty and breach.
- Directed verdict ONLY if there’s no proximate cause.
RES IPSA LOQUITUR
- Only the issue when there’s no direct evidence for the circumstances of the injury.
- Facts will not tell you how the injury occurred.
- If there are facts that tell you how it occurred, it’s NOT res ipsa.
- If P establishes res ipsa, D cannot succeed on a directed verdict.
Causation
PROXIMATE CAUSE
- As long as the intervening force is foreseeable, D’s liability is not cut off.
- Only compelling facts showing unforeseeability cut off liability.
COMPARATIVE/CONTRIBUTORY
- “Assume pure comparative, unless facts tell you otherwise”
- PURE: P can be 99% at fault, but can still recover with reduced recovery by %
- MODIFIED: P cannot recover if more than 50% at fault
- CONTRIBUTORY: P cannot recover if at fault.
Intentional Torts
Recall the elements of the particular intentional tort
Connect the facts to the intentional tort being tested
P has to prove intent, and that the harm she suffered was because of P’s intentional conduct
Damages are not an element of intentional torts
BUT
- IIED does not require intent, recklessness is sufficient (?), but damages are required.
Battery
Intentional harmful or offensive contact to the P’s person.
Anything P is touching or holding is part of the person
- Transferred intent (applies to battery, assualt, false imprisonment, trespass to land/chattel.
- EX: D intended to commit Tort A, but actually committed Tort B. D is still liable for intentional tort B.
Assault
Intentional creation of apprehension in the P of harmful or offensive contact (battery)
- Apprehension only means awareness of an imminent contact.
- Apprehension must be reasonable (look out for facts that D could not reasonably be placed in an awareness of imminent battery.)
- Need something more than words. (Negating words can negate imminence of actions)
False Imprisonment
Intent to confine to a bounded space.
- Threats are sufficient for restraint, and omissions are sufficient where there’s a prior obligation to permit someone to leave.
- No minimum time for confinement.
- Time only impacts damages, not the prima facie case.
- P must be aware of confinement, or suffer some physical harm.
- Size is not relevant.
- Was there a reasonable means of escape?
Trespass to Land
Intent to enter the land of another.
- Knowledge of trespass does not matter, only intent to enter the land.
- Entering the land of no volition of his own removes prima facie case of intent.
- Something tangible has to enter the land of another. (Light, sound, and odor are not trespass)
Trespass to Chattels
Intent to interfere with the possession of another’s chattel
Physical damage of chattel
Conversion
Intent to interfere with chattel of another
(More substantial interference than trespass to chattel.)
Permanent deprivation or major damage to chattel
REMEDY = FMV of chattel at the time of conversion
IIED
Intent to engage in extreme and outrageous conduct causing severe emotional distress.
- Must exceed all bounds of decency tolerated by civil society.
- Conduct is public, continuous, done by common carrier or innkeeper, or P is a fragile class of person, or if D is aware of a hypersensitivity and exploits it.
- Physical manifestation of damages is not required
TIP: Only intentional tort where recklessness is sufficient for intent, and only tort where P has to prove damages.
Intentional Tort Defenses
Consent:
- P must have had capacity to consent
- Scope, and whether D has exceeded it
Self-Defense
- Timing
- Accuracy ( reasonable belief)
- Appropriate Degree of force
Necessity
- Only available for property torts
Strict Liability
There must be either:
- A wild animal (taming is irrelevant)
- Abnormally dangerous activity
- Defective product
P is seeking to establish liability regardless of any fault.
TIP: Ordinary negligence products liability cases against a retailer or wholesaler will generally fail on the MBE, because P can rarely prove D breached a duty.
Products Liability
ELEMENTS
- A merchant
- Defective product (manufacturing or design)
- Defect must exist at the time product left D’s control
- P made reasonably foreseeable use of the product
- Plaintiff suffered physical or property damage\
