1
Q
What are the prima facie elements of an intentional tort?
A
- Voluntary act;
- Intent to cause harm;
- Causation; and
- Resulting harm
2
Q
Define
doctrine of transferred intent
A
If D intends to commit a tort but causes injury to a different victim OR commits a different tort than intended, original intent is transferred to the new victim/tort
3
Q
Elements of battery (intentional tort)
A
- Intentional act;
- That causes harmful or offensive contact
4
Q
What are the defenses to battery?
A
- Consent;
- Self-defense;
- Defense of property; and
- Defense of others
5
Q
Elements of assault
A
- Intentional act by D that creates;
- P’s reasonable apprehension;
- Of imminent harmful or offensive physical contact; and
- Causation
6
Q
Elements of false imprisonment
A
- D intends to confine or restrain P in a bounded area;
- D actually confines or restrains P in bounded area; and
- P knows or is harmed by confinement
7
Q
Define
shopkeeper’s privilege
A
A shopkeeper is not liable for false imprisonment if she:
- Has a reasonable suspicion that P has stolen goods;
- Uses reasonable force to detain P; and
- Only detains P for a reasonable time to confirm/deny the suspicion
⚠️ Note: Only non-deadly force allowed. Shopkeeper can be liable for P’s injuries if actions exceed scope of privilege.
8
Q
Elements of IIED
A
- D acts intentionally or recklessly;
- With extreme and outrageous conduct; and
- Causes P severe emotional distress
9
Q
Elements of trespass to land
A
- D intentionally;
- Physically invades P’s real property
10
Q
Elements for trespass to chattel
A
- D intentionally;
- Intermeddles or uses;
- P’s personal property (chattel); and
- Causes damage or loss of use
11
Q
Define
conversion
A
D intentionally exercises dominion and control over P’s property so as to deprive them of its use
12
Q
What are the defenses to intentional torts?
A
- Consent (express & implied);
- Self-defense;
- Defense of others;
- Defense of property;
- Necessity; and
- Recapture
13
Q
Elements for self-defense
A
- D subjectively and reasonably believes harm is imminent; and
- D uses proportional force to protect herself
14
Q
What is the defense of others defense?
A
D is entitled to defend another as long as D has a reasonable belief that the party being protected would be entitled to self-defense
15
Q
What is the necessity defense?
A
Allows D to reasonably interefere with P’s property to avoid a substantially greater harm (e.g. D damages P’s fence to try and save P’s burning house)
16
Q
What elements are needed for a bystander recover for IIED?
A
- D intentionally or recklessly harmed a third party;
- P was present at the scene and witnessed the event;
- P was closely related to victim (i.e. immediate family);
- D knew P was present and closely related; and
- P suffers extreme emotional distress as a result
⚠️ Note: P does not need to prove the above elements if D’s design or purpose was to cause severe emotional distress to P
17
Q
True or false: Intentionally wrongful actions render D liable for all consequences of those acts, even if unintended and unforeseen
A
True
18
Q
Elements of negligence
A
- Duty of care;
- Breach;
- Actual cause;
- Proximate cause; and
- Damages
19
Q
What general duty of care is owed?
A
D owes a duty of reasonable care (i.e. should act like a reasonably prudent person) to all foreseeable plaintiffs in the zone of harm
20
Q
What is the reasonably prudent person standard of care?
A
D must act as a reasonably prudent person would under the same circumstances with the same knowledge and capacity as a reasonable person
⭐️ Objective standard
21
Q
When are children held to the adult standard of care (RPP)?
A
When engaging in inherently dangerous adult activities (e.g. driving a car or motorcycle)
22
Q
Is there an affirmative duty to intervene, rescue, or aid another?
A
No, unless:
- D has a special relationship with P;
- D creates a need for rescue; or
- D undertakes the rescue and P relies on the rescue attempt
23
Q
What duty is owed to licensees?
A
Property owner must:
- Exercise reasonable care on the property;
- Warn or correct concealed dangers;
- That are known or should be known;
- In areas where P has access as a licensee
⚠️ Note: No duty to inspect for dangers
24
Q
What is the attractive nuisance doctrine?
A
D is liable for child trespassers if:
- D knows of a dangerous, artificial condition on the property;
- That poses a risk of death or great bodily harm to children;
- In a place that D knows or should know children are present;
- Children are too young to appreciate the danger;
- The risk of harm to children outweighs the burden of fixing the condition; and
- D failed to remedy the dangerous condition
25
What is the standard care for **children?**
Child must act as a child of **similar age, experience, and intelligence** would.
## Footnote
⭐️ More subjective than RPP standard
26
Elements for **negligence per se**
1. **Statute** imposed duty;
2. D **did not perform duty**;
3. P is a **member of a class that the statute was designed to protect**; and
4. Injury caused by D is the ***type* of injury that the statute was designed to protect against**
27
What **duty** is owed to **invitees**?
Property owner must:
1. **Inspect** area where invitees have access*;*
2. For **non-obvious, unknown** dangers;
3. **Warn** the invitee of the dangers; and
4. **Protect** them from the dangers
## Footnote
⚠️ Note: Duty is **non-delegable**
28
What is the duty of care for **common carriers?**
**Highest** duty of care; liable for even the **slightest negligence**
29
What is **non-delegable duty?**
Duty that **does not absolve D of liability** when contracted out to a third party (i.e. D is still ultimately liable)
30
What duty is owed to ***foreseeable*** adult **trespassers?**
Property owner must:
1. **Reasonably carry out activities** conducted on land; and
2. **Correct or warn of dangerous artificial conditions** on land that could cause **death or serious bodily harm**
31
What duty is owed to ***unforeseeable* trespassers**?
None
32
When has a **breach of duty** occurred?
When D **fails to follow the appropriate standard of care**
33
Elements of **res ipsa loquitur**
1. Injury **would not occur without negligence**;
2. D had **exclusive control** over instrumentality that caused the injury; and
3. **P did not contribute** to the injury
34
What is **actual cause** ("cause-in-fact") and what are the **3 tests** to determine its existence?
**Factual cause** of P's injuries.
Tests:
1. "But-for;"
2. Substantial factor; and
3. Burden-shifting test
35
What is **proximate cause**?
**Legal limitation** on actual cause. Asks: "Is it **legally fair** to impose liability on D?"
Holds that P's injuries must be **foreseeable** and a **direct consequence** of D's actions (i.e. no intervening or superceding causes)
36
# Define
superseding cause
**Unforeseeable, freakish, or bizarre** intervening event that **breaks the chain of causation** between the initial wrongful act and the ultimate injury.
Negates proximate cause, thereby relieving D of any liability.
37
# Define
intervening cause
Event that happens ***after*** D's conduct that contributes to P's injuries (e.g. medical malpractice).
Can be either foreseeable or unforeseeable. If **unforeseeable**, D is **relieved of liability**.
38
What **type of harm** does P need to prove to recover on a negligence claim?
**Actual damage**; i.e. actual harm to person or property
Nominal damages & damages for **solely for economic harm** are not sufficient
39
What **types of damages** can P recover?
1. Medical expenses (past & future);
2. Pain and suffering (past & future);
3. Lost income/earnings (past & future);
4. Property damages (reasonable value of repair or fair market value at time of injury if irreparable)
40
What are the **defenses** to **negligence**?
1. Contributory Negligence;
2. Comparative Fault; and
3. Assumption of Risk
## Footnote
⚠️ Note: Assume comparative negligence applies unless otherwise stated by MBE
41
What is the **default jurisdiction** on the MBE, contributory negligence or comparative fault?
**Pure comparative fault** in which **joint and several liability** applies
42
# Define
pure comparative fault jurisdiction
Reduces P's recovery **in proportion** to P's fault
## Footnote
E.g. If P is 40% at fault, recovery will be reduced by 40%
43
# Define
modified comparative fault jurisdiction
P **cannot be more than 50% at fault** for the resulting injury or else recovery will be barred.
If P is **less than 50%** at fault, recovery is **reduced by percentage P was at fault** (same as pure comparative negligence)
44
# Define
negligent entrustment
D is liable for negligence if:
1. Third party has a **reputation or record** that shows **propensity** to be dangerous when in possession of such instrumentality;
2. **D knew or should have known** third party had this dangerous propensity;
3. D **provided** third party with the dangerous instrumentality, and
4. **Third party injures P** with dangerous instrumentality
45
Elements for **negligent infliction of emotional distress (NIED)**
1. D's **negligence created foreseeable risk of harm** to P;
2. P was in the **zone of danger**; and
3. P suffered **emotional distress** as a result
46
Elements for ***bystander*** **negligent infliction of emotional distress** (NIED)
1. P is **closely related** to V;
2. P was **present** at the scene of the injury;
3. P **witnessed or perceived** the injury causing event; and
4. P suffered **severe emotional distress** as a result
47
Elements needed establish a **prima facie case** for **strict liability**
1. D's activities imposes an **absolute duty** to make safe;
2. Causation
3. Damages
48
When is D strictly liable for injuries resulting from a **wild animal**?
When P's injuries are:
1. **Unprovoked**; and
2. Caused by the animal's **foreseeable** **dangerous propensities or characteristics**
## Footnote
⚠️ Note: D is only liable for injuries caused by the animal's dangerous propensity. For example, if D owns a lion, and P is injured because she is allergic to the lion's hair, D will not be strictly liable.
49
# Define
abnormally dangerous activity
1. Not of **common usage**; and
2. Creates a **foreseeable and highly significant risk of physical harm** even when reasonable care is exercised by all actors (i.e. cannot be performed safely no matter how much care is exercised)
50
Elements of a **strict products liability** claim
1. D is a **commercial manufacturer or supplier** of the product;
2. Product was **defective**;
3. Defect **existed when D sold** the item;
4. P used the product in an **intended or foreseeable way**; and
5. Defect was an **actual and proximate cause** of P's injuries
51
What are the 3 types of **product defects**?
* **Manufacturing** defects;
* **Design** defects; and
* **Warning** defects
52
What are the **defenses** to **strict products liability** claim?
1. **Unforeseeable** user misuse/alteration/modification
2. **Assumption of risk**; or
3. Product **changed significantly after** it left D's control
## Footnote
⚠️ Note: whether or not defense is a complete bar will depend whether or not it is a comparative fault or contributory negligence jurisdiction. Make sure to read the question carefully.
53
When is P considered to have "**assumed the risk**"?
1. **P knew** of the defect/danger;
2. **P comprehended** the consequences of the defect/danger; and
3. **P voluntarily exposed** himself to that danger
54
Is the supplier of a **component part** liable for product defects?
Yes, if:
1. **Component itself** was **defective;** or
2. Supplier **substantially participated** in the manfucturing of the product and **participation was integral** to the defect
55
Elements of a **products liability negligence** claim
1. Commercial supplier owes a **duty of care** to foreseeable users/P's (bystanders, etc);
2. Supplier **breached duty** by failing to reasonably inspect product;
3. Breach was **actual and proximate cause** of injury; and
4. P suffered **physical damages** or **property damages** (economic losses are insufficient)
56
What are the 2 **implied warranties**?
1. Merchantability; and
2. Fitness for a particular purpose
57
Elements for **public nuisance claim**
1. D **unreasonably interfered** with a **public right** (typically right to health, safety, or property); and
2. P suffered **distinct and different harm** from the public at large
58
Elements of **private nuisance claim**
**Substantial** and **unreasonable** interference of P's use or enjoyment of her land
59
Differentiate between **nuisance** and **trespass**
**Nuisance:**
* No physical invasion required (can be light, smells, etc)
* Continuous
* Substantial interference
**Trespass:**
* Physical invasion required
* Does not need to be continuous
* Does not need substantial interference
60
Elements of **defamation**
1. **Defamatory** statement;
2. **Concerning P**;
3. **Published** to a third party (either intentionally or negligently);
4. That **damages P's reputation**
\*\* If matter is of public concern or P is a public figure, must also show →
5. D acted with **actual malice**
61
# Define
slander per se
Defamatory statement that **doesn't require proof of special damages.**
Accuses P of either:
* **Misconduct** that reflects poorly on P's profession;
* Committing a crime involving **moral turpitude**;
* Having a **loathsome disease**; or
* **Sexual misconduct** or impropriety
62
If defamation involves a matter of **public concern**, what must P prove?
1. **Statement was false**; and either:
2. **Actual malice** (public figure) or **negligence** (private figure)
63
What are the 3 main **defenses** to defamation?
1. **Truth** (absolute defense);
2. **Consent**; or
3. **Privilege:** absolute (complete defense) & qualified (can be revoked)
64
4 types of **invasions of privacy**
1. Intrusion upon seclusion;
2. Disclosure;
3. False light; and
4. Appropriation
65
**Defenses** for invasion of privacy torts
1. Privilege (absolute or qualified);
2. Consent
## Footnote
⚠️ **Truth is not a valid defense**
66
# Define
*respondeat superior*
Doctrine that holds an **employer** liable for the **unintentional** tortious acts of an employee committed **within the scope** of their employment
67
# Define
negligent hiring
Holds employers primarily liable for the **negligent hiring, supervision, entrustment, or retention** of an employee
68
When is an **employer** liable for an employee's **_intentional_ tort**?
When the tort falls within the **scope of employment**. Can fall within the scope of employment if:
* Force is **inherent** in the job (e.g. bouncer);
* Employer **authorizes** force; or
* Force is **necessary to achieve employer's goals**
69
For vicarious liability, what acts are considered **within the scope of employment?**
Acts that:
* Employee was **hired to do** or are part of her **official duties**; or
* **Benefit** the employer
70
# Define
joint and several liability
**Each D is fully and independently liable** for the full amount of damages owed
## Footnote
Ex. Both Max and Mat are jointly and severally liable for Brianne's injuries. Brianne's damages are $100,000. Brianne can collect $100,000 from Max or $100,000 from Mat, or $50,000 from Max and $50,000 from Mat (or another amount from each as long as the total doesn't exceed $100,000).
*More info:* [Joint and Several Liability](https://www.law.cornell.edu/wex/joint_and_several_liability)
71
# Define
contribution
If held jointly and severally liable, D can seek **contribution from the other D's for their share** of the damages
## Footnote
Ex. If Brianne sought $100,000 from Max, he could seek contribution from Mat for his share of the damages.
*More info:* [Contribution](https://www.law.cornell.edu/wex/contribution)
72
Compare **contribution** with **indemnification**
**Contribution**: Equitable apportionment, or sharing, among D's
**Indemnification**: Shifts the **entire loss** from the party who was found liable to the **actual wrongdoer** who was **primarily responsible** for the harm
MBE Rapid Fire
flashcards
Decks in class (8)
# Cards
