Torts (MBE, MCQ)

Question 1

How many types of negligence are there?

Answer 1

Three: negligence, negligence per se, res ipsa

Question 2

How would you know which type of negligence they are talking about?

Answer 2

Because of the elements called into question!!

Question 3

What are the elements of negligence?

Answer 3

(1) duty; (2) breach; (3) causation; (4) damages

Question 4

Who do you owe a duty to?

Answer 4

Only to foreseeable plaintiffs

Question 5

Who is a foreseeable plaintiff?

Answer 5

Those in the zone of danger of your potential action (i.e. if Grossman shoots a bowling ball in class, all the students are such, but not the Dean who got hit in the head b/c the ball went up the AC vents to his office)

Question 6

How do you need to act if you owe a duty?

Answer 6

Standard of care (SOC): Reasonable person standard

Question 7

SOC if you are a professional?

Answer 7

Like “similar professionals in the community w/similar/same training (note community NOT state)

Question 8

SOC if you are a child?

Answer 8

Like other children of “same age and maturity”

Question 9

Is there an exception to Child’s SOC?

Answer 9

Yes, when the child is engaged in adult-like activity

Question 10

SOC of a parent?

Answer 10

Duty to prevent the child from committing harm when parent “knew or should have known” that the child is likely to cause harm

Question 11

How would the parent know that they have a DOC from their children (fact pattern tell you)?

Answer 11

There is a duty if you have a “devil” child and there is an accident BUT no duty if the fact pattern child is a “tame, exemplar” kid

Question 12

Is there a duty to aid others/to rescue?

Answer 12

NO!! You DO NOT have to come to anyone’s aid

Question 13

Is there an exception to the duty to aid?

Answer 13

Yes. No care WILL always apply UNLESS the facts mention a special relationship (i.e. parent-child; in-keeper guests- like hotel-guest; a common carrier-if you are in a bus?)

Question 14

What happens if you come to someone’s aid and start rendering care?

Answer 14

Although there is no duty to aid, if you begin to render aid you OWE a duty to act reasonably in such care

Question 15

Do you owe a duty to someone entering your property (home)?

Answer 15

It depends… I know…

Question 16

Duty owed to known trespassers/licensee (social guest)?

Answer 16

Yes, to warn about KNOWN dangers to the landowner (if you don’t know of any, you’re Gucci)

Question 17

Duty owed to an unknown trespasser?

Answer 17

None, no duty owed

Question 18

Duty owed to an invitee (business/commercial)?

Answer 18

Yes, to “warn, clean-up & make safe.”
Think of a banana peel in Publix

Question 19

Define (2) breach

Answer 19

Failure to comply w/SOC

Question 20

Define (3) causation

Answer 20

There MUST be:
(a) actual cause - but-for test (but-for tortfeasor’s actions X would not have happened); and
(b) proximate cause - foreseeability (it must have been foreseeable that D’s actions would lead to an accident)

Question 21

What happens when the hypo gives you multiple subsequent injuries?

Answer 21

ONLY when the question asks if D would be liable for V’s subsequent injuries (crashed in the ambulance and such), you look at whether such actions were:

(1) intervening cause - separate acts that did not cut off liability b/c they are a consequence of the original injury
- - > think eye patch hypo

(2) superseding cause – ONLY unforeseeable events; thus liability would be cut off
- - > ONLY includes: (a) acts of God; (b) intentional torts; (c) criminal acts; (d) anything fact pattern tells you is unforeseeable

Hint: if facts don’t say unforeseeable –> foreseeable and D is liable!!

Question 22

Define (4) damages

Answer 22

No injury = no negligence. Physical harm is required to meet it.

Question 23

Contributory negligence

Answer 23

IF P is even 1% liable = NO recovery (P gets 0)

Question 24

Exception to contributory negligence

Last clear chance

Answer 24

P can recover everything (even if P was negligent IF D had the “last clear chance” to avoid the accident and DID NOT.

Question 25

Pure comparative negligence

Answer 25

P can only recover reduced by his own % of fault (default FL rule)

Question 26

Modified/modern comparative negligence

Answer 26

IF P is 50%++ = NO recovery (if less than, P recovers)

Question 27

Assumption of the risk

Answer 27

P “understands” and “appreciates” risk and goes ahead anyway.

Note: knowledge ALONE is not enough (you have to be 100000%%% sure)

Question 28

Joint and several liability

Answer 28

IF 2+ people caused a single accident (% of individual fault unknown), P can recover ALL damages from any D

Question 29

Contribution (joint and several liability)

Answer 29

Happens when D1 paid all damages to P and wants to collect money owed from D2

Question 30

Vicarious liability

Answer 30

Principal is liable for agent’s negligent acts IF agent was acting within the scope of agency/employment

i.e. in sum, if agent acted negligently while doing what you told them to do.

Question 31

Independent contractor (vicarious liability?)

Answer 31

IF you hire someone to do work for you under an independent capacity, there is no vicarious liability UNLESS you: (1) engage in an abnormally dangerous activity or (2) have a non-delegable duty

Non-delegable duty: work done for the safety/benefit of the public

Question 32

What are the elements of negligence per se?

Answer 32

(1) there is a statutory violation; (2) Plaintiff/victim is part of the statute’s protected class; (3) P/V’s harm is the type of injury the statute is trying to prevent

Question 33

Example of negligence per se?

Answer 33

I am driving 50 on a 20mph residential zone and crash into a resident. There is a statutory violation of a member of the protected class and the harm is such that the injury is trying to prevent.

Question 34

What are the elements of res ipsa?

Answer 34

(1) the act would not have occurred absent negligence, and (2) D had exclusive control of the property.
- - > if both met, then an inference of negligence would be raised.

Question 35

What are the types of strict liability?

Answer 35

D is liable if they have wild animals (no matter the injury) OR/AND engaging in abnormally dangerous activity

Question 36

Wild animals’ strict liability

Answer 36

ANY injury from interacting w/wild animal makes owner strictly liable (actual injury from the animal or from the fear/shock/falling from running away, etc.)

Question 37

Abnormally dangerous activity strict liability

Answer 37

Any injury b/c blasting explosives, dangerous/hazardous/nuclear/flammable chemicals, etc.

Question 38

Can a domestic animal become wild?

Answer 38

YES if the animal shows a dangerous propensity

Question 39

Is there an exception to strict liability?

Answer 39

Yes, only ONE: assumption of the risk

Question 40

Assumption of the risk

Answer 40

Def: you know and appreciate the nature of the risk AND do it anyway (appreciate = some acknowledgement of assuming the risk)

Question 41

What are the possible legal explanations of buying something and it being broken?

Answer 41

1. Strict product liability
2. Negligence
3. Warranty

Question 42

1. Strict product liability (default def)

Answer 42

(1) the product was defective when it left the factory; (2) product’s seller usually sells those products; (3) product sold to a foreseeable user of the product; (4) buyer used the product how it was intended to be used.

Remember: any entity handling the products will be liable under strict product liability (shippers, store, etc.)

Question 43

Alternative - strict product liability def

Answer 43

Inadequate warning or failure to warn about a defective product

Question 44

Defense to strict product liability

Answer 44

Assumption of the risk

Question 45

2. Negligence (broken products def)

Answer 45

Someone in chain of selling (i.e. retailer, manufacturer, etc.) failed to do something they were supposed to do

Question 46

3. Warranty

Answer 46

There was a label/sticker/something in writing promising how the product would work

Question 47

Private nuisance

Answer 47

Unreasonable interference w/USE and ENJOYMENT of someone’s property
The interference must be unreasonable to an OBJECTIVE person
i.e. Light, smell, noise (not about economic value)

Question 48

Public nuisance

Answer 48

The entire community is suffering an unreasonable interference + suit brought by PUBLIC official

IF suit is brought by a private individual/group/NGO, you are required to show special damages