Torts - MBE Rules from Missed Questions Flashcards
False Imprisonment
occurs when a defendant
1) Intentionally causes a plaintiff
2) to be confined or restrained to a
3) bounded area
4) with no reasonable means of escape
5) of which the plaintiff is either aware of the confinement or suffered harm from it
What constitutes confinement in a False Imprisonment?
Confinement may constitute the use of physical barriers, physical force, direct or indirect threats (to the plaintiff, third party or plaintiff’s property), failure to provide a means of escape or invalid use of legal authority. Use of Moral pressure or future threats does not constitute confinement or restraint. Plaintiff’s willingness to submit to confinement does not count
Eg. Woman looking raggedy entered store. The owner “assumed that she entered the store intending to steal.” Owner told her go back to office but left both the office and store unlocked and only threatened the woman that if she doesnt comply with questioning, he would have her arrested “next time.” Next time constitute future threat which is not confinement. Here, she was also free to leave at any time because the office and the store was unlocked.
IIED: Bystander Liability or Third Person Liability
occurs where the Defendant intentionally or recklessly directs extreme and outrageous conduct at SOMEONE OTHER THAN THE PLAINTIFF. (eg. person X) the plaintiff can recover if
1) Plaintiff physically PRESENT and KNOWN by defendant to be present and is CLOSE RELATIVE to X
OR
2) Plaintiff physically PRESENT and KNOWN by the defendant to be present AND THE PLAINTIFF SUFFERS BODILY HARM as a result of the severe emotional distress
Duty to Trespassers
A Landowner owes NO DUTY to make the land safe or warn of dangerous conditions to undiscovered trespassers or invitee/licensees beyond the scope of invitation
What is Negligent Infliction of Emotional Distress?
A Defendant is liable for NIED when the defendant engages in negligent conduct that causes the plaintiff to suffer serious emotional distress.
What are the 3 TYPES OF CASES in which a DEFENDANT may BREACH THE DUTY TO AVOID negligently inflicting emotional distress upon a plaintiff?
1) Zone of Danger
2) Bystander Recovery
3) Special Relationship
NIED elements
A plaintiff can recover for negligent infliction of emotional distress from a defendant whose tortious conduct placed the defendant in harm’s way if the plaintiff demonstrates that:
(i) he was within the “zone of danger” of the threatened physical impact—that he feared for his own safety because of the defendant’s negligence; and
(ii) the threat of physical impact caused emotional distress
NIED elements: Bystander Recovery
most states allow a plaintiff outside the zone of danger to recover emotional distress if the plaintiff is
1) closely related to the person injured by the defendant
2) was present at the scene of the injury
3) personally observed (or otherwise perceived the injury)
NIED Special Relationship if there is no threat of physical impact?
The duty to avoid NIED exists without any threat of physical impact or physical symptoms in cases in which there is a special relationship between the plaintiff and the defendant.
ex. physician negligently misdiagnosing a patient with terminal illness that the patient doesnt have, and patient goes into shock; mortician mishandling a corpse or common carrier reporting death of relative
What is the Duty Standard for Professionals?
A professional person (e.g., doctor, lawyer, or electrician) is expected to exhibit the same skill, knowledge, and care as an ordinary practitioner in the same community. A specialist may be held to a higher standard than a general practitioner because of his superior knowledge.
Pure Comparative Fault
- in MBE questions, always apply pure comparative fault unless stated otherwise
A plaintiff’s contributory negligence is NOT a complete bar to recovery. Instead, the plaintiff’s full damages are calculated by the trier of fact and then reduced by the proportion that the plaintiff’s fault bears to the total harm (e.g., if the plaintiff’s full damages are $100,000, the plaintiff is 80% at fault, and the defendant is 20% at fault, then the plaintiff will recover $20,000).
What is the general rule for vicarious liability for parents and their torts committed by their children?
The general rule is parents are not liable for the torts committed by their children EXCEPT whe
i) The child commits a tort while acting as the parent’s Agent;
ii) State statutes provide for the liability of parents when children commit specified acts such as vandalism or school violence; or
iii) State statutes require that a parent, when he signs for the child’s driver’s license application, assumes liability for any damages caused by negligent acts that the child commits while driving a car.
What is the rule for negligence of parents?
Parents, however, are liable for their own negligence with respect to their minor child’s conduct. A parent is under a duty to exercise reasonable care to prevent a minor child from intentionally or negligently harming a third party, provided the parent:
i) Has the ability to control the child; and
ii) Knows or should know of the necessity and opportunity for exercising such control.
In such circumstances, a parent who fails to exercise control may be liable for harm caused by the child, even though the child, because of his age, is not liable. Restatement (Second) of Torts § 316 (1965).
Physicians duties or obligations to a patient and what are the exceptions
Physicians are under a special obligation to explain all material risks of a medical procedure to a patient in advance of a patient’s decision to consent to treatment. Failure of a physician to secure informed consent from the patient constitutes a breach of the physician’s duty toward the patient and is actionable as medical malpractice.
Doctors are not under an obligation to disclose when the risk is
1 a commonly known risk,
2 the patient waives or refuses the information,
3 the patient is incompetent (although the physician must make a reasonable attempt to secure informed consent from a guardian),
4 or disclosure would be detrimental to the patient (e.g., it would upset the patient enough to cause extreme illness, such as a heart attack).
Elements of Negligence Per Se
i) A criminal or regulatory statute (or an administrative regulation or municipal ordinance) imposes a specific duty for the protection of others;
ii) The defendant violates the statute by failing to perform that duty;
iii) The plaintiff is in the class of people intended to be protected by the statute; and
iv) The harm is of the type the statute was intended to protect against.
Once negligence per se is established, in order for the defendant to be liable, the plaintiff must prove that his injuries were proximately caused by the defendant’s violation of the statute.
