MBE: Torts

  1. Intentional Torts -- ABC Fitt
    • A: Assault
    • B: Battery
    • C: Conversion
    • F: False Imprisonment
    • I: Intentional Infliction of Emotional Distress
    • T: Trespass to Land
    • T: Trespass to Chattels

    • KEYS:
    • (1) Consent by P always a defense.
    • (2) Reasonable mistake by D NOT a defense if D had intent or was reckless.
    • (3) None of the intentional torts requires an injury OR intent to injure.
  2. Transferred Intent
    GEN: If you intend one forbidden result and you end up with another forbidden result, the intent transfers.
  3. Battery
    • REQS: (1) H/O conduct; (2) to plaintiff's person; (3) intent; (4) causation.
    • >> H/O: Not permitted by a person of ordinary sensitivity -- victim's peculiarities not considered.

    NOTE: Sex assault is oftentimes a battery.

    • OFFENSIVE TOUCHING: conduct socially unacceptabel unde rthe circumstances involving touching.
    • >> IE. A doctor swap in a surgery situation can result in an offensive touching. Exception, however, for emergencies.
  4. Assault
    • GEN: D acting creating a reasonable apprehension of immediate h/o conduct.
    • >> Apprehension: knowledge, not fear.
    • >>>> If victim knows attack ≠ consumated, NL. If knowledge, L. Can be caused by weapon/conduct.
    • >>>> Apparent ability creates reasonable apprehension.
    • >> Immediacy: defeated by conditional words or words of future action. Must be immediate
  5. Entrapment
    • REQS:
    • (1) Act of restraint by defendant; AND
    • >> Threats: okay if persuasive to a RPPSSC.
    • >> Omissions: may also count (ie. wheelchair)
    • (2) To a bounded area.
    • >> Freedom of movement must be limited in 360 degrees. Mere inconvenience insuff.
    • >> No reasonable method of escape. Dangerous, disgusting, humiliating, ect. ≠ reasonable.

    KEY: P must either have awareness or have experienced harm (mental or physical).

    NOTE: Can recover for embarrassment.
  6. Intentional Infliction of Emotional Distress
    • REQS:
    • (1) Extreme/Outrageous Conduct; AND
    • >> Outrageous: exceeds bounds of decency tolerated in a civil society.
    • >>>> Insults ≠ outrageous.
    • (2) Causes P to suffer severe emotional distress.
    • >> Unlike NIEM, need not have physical symptoms, or see a psychologist. Less rigid test.

    • (1) Conduct continuous/repetitive.
    • (2) Common carrier or innkeeper -- heightened duty (of courtesy).
    • (3) P member of a fragile class of people (child, eldery, pregnant).
    • >> Race, religion, sex orientation -- fragile only where comments directed at their class. Often include an abuse of authority.
  7. Trespass
    • REQS:
    • (1) Physical invasion of the land of another; AND
    • >> Invasion must be physical: noise, smell, light ≠ count.
    • >> May include deliberately propelling stuff onto another's property.
    • >> Throwing a ball over one's property -- even if it doesn't land there -- is still an invasion.
    • (2) Enter property -- intentionally -- on foot or in vehicle.
    • >> Property: includes air above & soil below (reasonable distance -- one you can make use of).
    • >> Note: if recklessly control boat and it ends up on another's property, negligence, no tresp.

    NOTE: No knowledge requirement. Need not know your on another's land, only that you're where you intended to be.

    • STANDING: Must own land or have a right to possess it BEFORE suit.
    • >> Actual or constructive possession -- even if possesion is without title or legal right.
    • >>>> RESULT: Landlords not in possession of the property often can't bring a claim.
  8. Trespass to Chattels
    • REQS:
    • (1) Intentional interference with P's personal property.
    • >> Can deliberately interfere with property, or take it away from someone.

    • KEY: Degree of interference is small to modest.
    • REMEDY: Repair or rental.
  9. Conversion
    • GEN: Similar to TTC, but BIG harm.
    • >> Typically a permanent interference.

    • REMEDY: FMV of property. Amounts to a forced sale.
    • >> Key: value at the time of the conversion, with interest from the date of conversion.
  10. Shopkeeper's Privilege
    • GEN: Can use reasonable force or threat of force to recapture chattels from a tortfeasor.
    • >> Also applies to people reasonably believed to be in possession of shoplifted goods.
  11. Defamation (General)
    • (1) Libel: Defamatory statement written down.
    • >> Damages are assumed.
    • >> NOTE: Defamation on the radio is treated like libel in most courts.

    • (2) Slander: Spoken defamation
    • >> Slander Per Se (damages assumed): LUMP --
    • (1) Loathsome disease
    • (2) Unchastity (women)
    • (3) Moral Turpitude
    • >> Baseness, vileness, depravity in social/private affairs.
    • (4) Profession/business.
    • >> Other Slander: must prove damages -- econ. harm only. No recovery for emotional harm.

    • (1) If P is a public figure, must show actual malice by clear and convincing evidence.
    • >> Knowledge that statements are flase or reckless disregard of the truth.
    • NOTE: Police are public officials, but school officials are not.

    • GEN: Must show negligence of speaker/writer in ascertaining the truth/falsity of the facts.
  12. Defamation (Damages)
    • (1) Consent (actual/implied) -- ie. P demands a response from D.
    • (2) Truth: burden on D.
    • (3) Privileges:
    • >> Absolute: (a) Communcation between spouses (bulletproof); (b) officers of three branches of gvt in their professional duties; and (3) judicial branch, including attys/judges/witneses.
    • >> Qualified: Public interest in encouraging candor -- letters of recommendation, stmts to police.

    • GEN: Defenses can only be invoked if spojen w/ GF and reasonable belief that statements were true.
    • >> Statements must be confined to matters of public purpose.

    • PUBLIC CONCERN EXCEPTION: Usually concerns an expose in a paper.
    • (1) P must prove falsity;
    • (2) Fault -- degree depends on P's identity:
    • >> Public Figure: P must show D knew info was false and published it anyway, or did so recklessly.
    • >> Private Figure: Need only show negligence.
  13. Mitigation Requirement
    • GEN: P has a duty to take reasonable steps to mitigate damages.
    • >> Failure to seek appropriate treatment to effect healing and prevent aggravation can preclude recovery.
    • >> If parent fails to take child to the doctor after the kid is harmed, failure to act could frustrate recovery UNLESS it can be shown that a parent's negligence cannot be imputed to the child.
  14. Privacy Torts: Appropriation
    • GEN: D uses P's name/picture for commercial purposes.
    • >> Newsworthiness Exception: Pictures or articles.
  15. Privacy Torts: Intrusion
    • GEN: Invasion of D's seclusion, offensive to an ordinary person.
    • >> P must always be where there's a REOP.
    • >> Trespass to land ≠ requirement.
  16. Privacy Torts: False Light
    • GEN: Widespread dissemination of major falsehood re: P that would be objectionable to an average person.
    • >> Need to tell LOTS of PPL.
    • >> Falsehood: If defamation sufficiently objective.

    DISTING FROM DEFAMATION: Here, damages for harm to reputation, not just actual damages.

    NOTE: No intent requirement; SL if you get your facts wrong.
  17. Privacy Torts: Disclosure of Private Information
    • GEN: Confidential, truthful info disclosed (ie. med records).
    • ELEMENTS: (1) public disclosure by D of private info re: P; AND (2) matter made public is something a reasonable person would object to having made public.
    • (1) Newsworthiness -- president's medical records.
    • (2) Matters of public interest.

    • NOTE: Dual life situations -- ie. work and home worlds.
    • >> Brining info from one sphere to another generally not actionable.
  18. Privacy Torts: Defenses
    • GEN:
    • (1) Consent
    • (2) Absolute and Qualified Privilege: false light.
  19. Negligence (GEN)
    • (1) Duty; (2) Breach: (3) Causation; (4) Damages
  20. Negligence (DUTY)
    • GEN: Duty to incorp risk-reducing precautions.
    • STND: objective and inflexible.
    • >> As must duty as a RPPSSC would use.
    • >> Typically exceptions, BUT heightened duty where --
    • >>>> (1) Def. has superior knowledge: either body of info or a single isolated nugget of fact; AND
    • >>>> (2) Defined physical characteristics: blind, wheelchair, ect. -- but don't offer relief in every case.
    • Key: duty owed to foreseeable victims. Unforeseeable victims lose negligence suits.
  21. Negligence (DUTY -- Rescue Exception)
    • Duty to Rescue
    • GEN: NO duty to aid another.
    • (1) Creating the Peril: When the need for rescue arises because of the defendant's negligence.
    • (2) Special Relationships: ie. common carrier-passenger, innkeeper-guest and ship captain-seaman.
    • (3) Undertaking to Act + Reliance: no oblig. to intervene, but once you do, duty arises.
    • >> KEY: rescuer is obligated to act reasonably once he has begun to act.
    • (4) Contract: rescue obligation arises from contract.
  22. Negligence (DUTY -- Special Standards)
    • (1) Children: under 4, NL; between 4-18 -- subjective standard (same care as a child of similar age, experieince and intelligence acting under similar circumstances). Result is that the standard is flexible and pro-defendant.
    • >> Exception: Child engaged in an adult activity (motor vehicle).

    • (2) Professionals: owe avg duty of care for ppl in that profession practicing in a similar community.
    • >> Primary care doctors are compared to docs in similarly-sized regions; specialiss are in a nat'l comm.
    • >> Custom tends to set the SoC.
  23. Last Clear Chance Doctrine (Contrib. Neg)
    • GEN: doctrine in the law of torts that is employed in contributory negligence jurisdictions.
    • >> negligent plaintiff can nonetheless recover if he is able to show that the defendant had the last opportunity to avoid the accident.
  24. Negligence (DUTY -- Premises Liability)
    • Land Possessors and Entrants
    • (1) How did entrant get hurt?
    • >> Activities carried out on property by D or D's agents?
    • >> Encountering a hazardous condition on land?
    • (2) Categorize entrant.
    • >> Undiscovered Trespasser: No DoC.
    • >> Discovered Trespasser (actual or should have discovered):
    • >>>> Activities: RPPSSC
    • >>>> Hazards: Known, man-made death traps.
    • >>>>>> Only a duty if the hazard (i) is artificial; (ii) highly dangerous (killing/maiming); (iii) concealed from entrant (not visible); AND (iv) land possessor has prior knowledge of hazard.
    • >> Licensees: enter w/permission but no economic beneit for possessors. Usually guests. Implied permission to walk up to your front door.
    • >>>> Activities: RPPSSC.
    • >>>> Hazardous Conditions: Protect against all known traps, including those that are slightly dangerous. Requires -- (i) Condition must be concealed from the licensee; AND (ii) condition must be known in advance by the possessor.
    • >> Invitees: Either enter w/ commercial purpose and permission OR when enter place open to public.
    • >>>> Acitvities: RPPSSC.
    • >>>> Hazards: Duty to protect against all reasonably known traps -- requires (i) condition concealed by invitee; AND (ii) land owner knew about in advance or could have discovered through a reas. inspection.

    FIREFIGHTERS/POLICE: Can't recover from an injury resluting from inherit risk activity.
  25. Negligence (DUTY -- Premises Liability)
    ** Attractive Nuisance **
    • GEN: Artificial condition, dangerous but attractive to small children, on land of another.
    • DUTY: Exercise reasonable care to eliminate the danger or otherwise protect the child.
  26. Negligence (NPS)
    • GEN: Borrow statute's language -- use it to establish specific duty standards.
    • REQS:
    • (1) P at issue is a member of the class of persons the statute is trying to protect; AND
    • (2) The accident at issue is in the class of risks the statute is trying to prevent.

    • EXCEPTIONS: Where test is satisfied BUT the statute ≠ set the standard of care --
    • (1) Statutory compliance would have been more dangerous than compliance under the circums; OR
    • (2) Complieance wouls have been impossible under the circumstances (ie. incap. by heart attack)
  27. Negligence (Breach - General)
    • GEN: Wrongful conduct specifically identified. But must explain why wrongful:
    • >> "Plaintiff will allege that defendant behaved unreasonable by doing [x]. This is unreasonable b/c of [y].">>>> Must give a reason and ID wrongful conduct.
    • >>>> BUT: if a statute (NPS), need not give a reason.
  28. Negligence (Breach - Res Ipsa Loquitor)
    • GEN: Situation where P ≠ know what D did wrong.
    • RESULT: Burden of evidence shifts to defendant.

    • REQ: P must make two showings --
    • (1) Demonstrate that accident that occured normally ≠ occur in the absence of negligence.
    • >> In the absence of evidence, rely on statistics.
    • >> P can also appeal to common knowledge of judge/jury.
    • (2) Accident that occurred normally due to negligence of someone in P's position.
    • >> Show you're suing the right person.
    • >> Proof = evidence of control.
  29. Negligence (Factual Causation)
    • Factual Causation: linkage b/wn breach and injury.
    • >> BUT-FOR TEST: but for the breach, the plaintiff would not have been injured.

    • (1) Merged Causes (pollution, toxins): At least two who act and both harm the plaintiff.
    • >> TEST: Substantial Factor Test: D's action a substantial factor if it, on its own, could have caused harm.
    • >> RESULT: All Ds, if convicted, can be held J+S liable.
    • (2) Multiple Defendants & Unascertainable Causes: Burden shifts to Ds to prove that they DIDN'T cause the injury.
  30. Negligence (Proximate Causation)
    • KEY: Foreseeability. Liability is fair.
    • NOTE: Liability should NOT attach if freakish/bizzare.

    • INDIRECT BUT DEPENDENT CAUSES: D commits breach and then other stuff happens before P injured --
    • (1) Intervening Medical Negligence (Malpractice): Liable
    • (2) Intervening Negligent Rescue: Liable.
    • (3) Intervening Effort to Protect and Injuries Caused by Reacting to D's Actions: Liable
    • (4) Subsequent Accident/Disease: Liable.
  31. Negligence (Proximate Causation & Intervening Forces)
    • Independent Intervening Forces: forces that aren't a natural response/reaction to a situation created by D's conduct. Liability might attach from harm from such forces if they're foreseeable. IEs. --
    • (1) negligent act of third persons;
    • (2) harm resuls from crimes/intentional torts of third persons; OR
    • (3) acts of god.

    Unforeseeable Results by Foreseeable Intervening Forces: rarely liable.

    • Foreseeable Results by Unforeseeable Intervening Forces: usually liable.
    • Unforeseeable Results by Unforeseeable Intervening Forces: Superceding events that are unforeseeable and break the causal chain. No liability.
  32. Negligence: Respondeat Superior
    • GEN: Employer can be held responsible for employees actions IF:
    • (1) Employee acting within the scope of employer's business with the tort committed.
    • (2) Negligent hiring: not within the scope of employment, BUT neg. hiring.
    • >> IE. If had conducted a reasonable background check, would not have hired employee.
    • (3) Negligent Entrustment: ie. negligently entrusting an employee with a dangerous instrument.
  33. Damages (Eggshell Skull Rule)
    EGGSHELL SKULL RULE: Take P as you find him, assuming other elements are met. Applied to every tort.
  34. Negligence (Affirmative Defenses -- CN)
    • Comparative Negligence: D offers evidence that P failed to exercise care for his own safety. S must make showing, then court/jury will assign percentages and the damage amount will be reduced accordingly.
    • >> (1) Pure Comparative Fault: Go strictly by jury's numbers, P always recovers something.
    • >> (2) Partial Comparative Fault: If P's fault over 50%, barred from recovering.
  35. Negligence -- Defenses (Last Clear Chance)
    GEN: If D proves contributory negligence, P can show that the defendant had the last clear chance to avoid the harm. Only available to the plaintiff once CN shown.
  36. Negligent Infliction of Emotional Distress
    • GEN: D creates a foreseeable risk of physical injury to P either by
    • (1) Causing a threat of physical impact leading to emotional distress; OR
    • (2) Directly causing severe emotional distress that by itself is likely to result in physical symptoms.

    KEYS: (1) P need not sustain bodily injury; AND (2) outrageous conduct ≠ necessary.

    • (1) Near Miss: D negligent, no injury to P, but exposure and P in the zone of danger.
    • >> REQ: Subsequent physical manifestation of symptoms.
    • (2) Bystander: Distressed person sees injury inflicted on another. Recovery (grief/sadness) ok if (i) victim is a close family member; AND P present at and observed the injury.
    • >> Most, but not all, states require physical manifestation of grief.
    • (3) Pre-existing Relationship: Doctor neg conducts test, gives false results.
  37. Strict Liability Claims (Animals)
    • Domestic Animals
    • GEN: No SL for domesticated animals, Must show that D acted negligently.
    • BUT: If you have an animal an know of its vicious propensities, then can be held liable for the harm it causes to others.

    • Wild Animals
    • RULE: Owner SL to licensees/invitees for injuries caused by wild animals as long as the injured person did nothing to cause the injury.
    • >> Injury has to be characteristic of the harm basued by animals.
    • >> Wild animals cannot be domesticated.
    • GEN: No prereqs need to be shown. Safety precautions irrelevant.

    NOTE: If an animal -- wild or domesticated -- bites a trespasser, usually no liability. But if injury inflicted by vicious watchdogs, may be liable.
  38. Strict Liability Claims (Abnormally Dangerous Activities)
    • REQS: SL if harm results from --
    • (1) Activity that creates a foreseeable risk of reasonable harm even when reasonable care is exercised; AND
    • (2) Activity not commonly done in the community.

    • EXAMPLES: liability has been for:
    • blasting or dangerous storage of explosives or flammable products
    • dangerous release and application
    • dangerous transportation
    • dangerous transmission

    • NOTE: No showing needed that D acted intentionally, negligently or recklessly.
    • NOTE: Not confined to interests in land (ie. trespass, nuisance).
  39. Strict Liability Claims (Products -- Elements)
    KEY: In both SL and negligence cases, no privity requirement b/wn P and D. Any foreseeable plaintiff, including a bystander, can sue any commercial supplier in the chain of distribution regardless of the absence of a contractual relationship.

    KEY: Should always bring SL and negligence actions.

    • (1) D must be a merchant (routinely deal in goods of a type)
    • >> Merchants include: (i) Lessors (ie. auto rental companies); and (2) Every Party in a Distribution Chain (includes: manuf, wholesalers, retailers, suppliers).
    • >>>> NOTE: No privity of contract required.
    • >> NOT Merchants: Casual sellers; and Service Providers.
    • >>>> NOTE: Can't be SL, but can be liable under theories like negligence.
    • (2) P must demonstrate that the injurious product was defective.
    • >> Manufacturer's defect (departs from the intended design and is more dangerous than reasonable consumers expect).
    • >> Design Defect: Product could have been constructed differently and the "alternative" meets 3 reqs: (i) safer than the version currently on the market; (ii) economically viable (approx same cost); AND (iii) practical.
    • >>>> NOTE: This issue usually includes info coming w/ products. If product has residual risks that cannot be eliminated AND they're not obvious product defects, it MUST give adequate (obvious and clear) warnings.
    • (3) Must show product has not been altered since it left D's hands.
    • (4) Must demonstrate that P making a foreseeable use of product at time of injury.
    • >> Foreseeable ≠ intended use. Rather, it's broader.
  40. Strict Liability Claims (Products -- Damages & Defenses)
    DAMAGES: Compensatory and punitive.

    • (1) Misuse of a procut: if misuse is foreseeable, P liable. If unforeseeable, valid defense.
    • (2) Contributory negligence: ordinary contrib negligence is NOT a defense where P merely failed to discover the defect or guard against its existence, or where P's misuse was reasonable foreseeable.
    • (3) Comparative negligence: courts apply their rules.

    • Do not save Ds from liability if personal injurt or property damage occurs.
  41. Implied Warranty of Merchantability
    GEN: In cases where goods are not of avg acceptable quality and/or not fit for the ordinary purpose for which they are used, those with horizontal privity can sue.

    KEY: Can collect not only personal injury/property damages, BUT ALSO purely economic loss.
  42. Private Nuisance
    • GEN: Substantial, unreasonable interference w/ another private individual's use/enjoyment (not possession) of his property.
    • >> Substantial: offensive, conconvenient or annoying to the average person. Watch out for hyper-sensitive Ps.
    • >> Unreasonable: Severity of inflicted injury outweighs utility of D's conduct. Required for nuisances based on intent or negligence.

    DIFF FROM TRESPASS: Concerns use/enjoyment of land, not exclusive possession.

    MBE: Look for answer choices that balance interests.
  43. Public Nuisance
    GEN: Interferes w/ heath, safety, or property rights of the community -- using a building for criminal activities such as prostitution. Recovery by a private party available only if he suffered unique damages not suffered by the public at large.
  44. Vicarious Liability
    GEN: liabity derivative imposed -- one person commits a tortious act against a third party and another is held liable.

    • (1) Employer -- Employee (RS): Liable if w/in scope of employment.
    • >> Intentional torts are outside the scope of liability unless: (1) job requires use of physical force (security, or generates animosity/friction). Look for overzealous or misguided behavior.
    • (2) Hiring Party -- Indep. Contractor: Gen NL except if contractor jurts an invitee -- then VL.
    • (3) Car Owner -- Driver: Car owner generally not liable unless driver running an errand for the owner.
    • (4) Parents -- Kids: generally NL.
    • (5) Partners and Joint Ventureres: Each member vicariously liable for the tortious conduct of another committed in the scope/course of the biz affairs.
  45. Contribution & Indemnity
    Co-D Responsibility: may have to pay contribution

    • Contribution: D who pays more than his share of damages under J+S liability may file claim against other joinrly liable parties for the excess.
    • >> Usually where both defendants have measurable degrees of culpability for the tort.

    • Indemnity: Shifting the entire loss between or among tortfeasors.
    • >> Available: by contract, under SL, VL ...
    • >> Indemnity applies (gen) where one party more responsible than the other.

    • Exceptions to Contribution: Where out of pocket party gets all the money back (indemnity).
    • >> If you've been held VL -- indemnity by active tortfeasor.
    • >> Any non-manufacturer can get indemnity from a manufacturer.
  46. Joint and Several Liability
    GEN: Two or more negligent acts cobime to proximately cause an indivisible injury -- each actor held J+S liable.
  47. Loss of Consortium
    • Spouse of victim can bring a separate and independent action for:
    • (1) damages for loss of services (household);
    • (2) Loss of society -- company and companionship; AND
    • (3) Loss of sex.
  48. Intentional Misrepresentation
    • (1) Misrepresentation;
    • (2) Scienter;
    • (3) Intent to induce;
    • >> Statements made to one person can be the basis of I.M. where D could reasonably see that the person would rely on the statement.
    • (4) Causation;
    • (5) Justifiable reliance; AND
    • (6) Damages.
  49. CL Rule: Automobile Torts
    GEN: auto owner is not liable for torts committed by another person driving the owner's car.

    NOTE: Many states have changed the rule and imposed liability on car owners for the tortious conduct of an immediate family member driving the car (family car rule) OR such conduct of anyone else sriving the car with consent (permissive use rule).
Card Set
MBE: Torts