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MBE > MBE Rapid Fire > Torts > Flashcards

Torts Flashcards

1
Q

What are the prima facie elements of an intentional tort?

A
  1. Voluntary act;
  2. Intent to cause harm;
  3. Causation; and
  4. Resulting harm
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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

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3
Q

Elements of battery (intentional tort)

A
  1. Intentional act;
  2. That causes harmful or offensive contact
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4
Q

What are the defenses to battery?

A
  1. Consent;
  2. Self-defense;
  3. Defense of property; and
  4. Defense of others
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5
Q

Elements of assault

A
  1. Intentional act by D that creates;
  2. P’s reasonable apprehension;
  3. Of imminent harmful or offensive physical contact; and
  4. Causation
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6
Q

Elements of false imprisonment

A
  1. D intends to confine or restrain P in a bounded area;
  2. D actually confines or restrains P in bounded area; and
  3. P knows or is harmed by confinement
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7
Q

Define

shopkeeper’s privilege

A

A shopkeeper is not liable for false imprisonment if she:

  1. Has a reasonable suspicion that P has stolen goods;
  2. Uses reasonable force to detain P; and
  3. 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.

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8
Q

Elements of IIED

A
  1. D acts intentionally or recklessly;
  2. With extreme and outrageous conduct; and
  3. Causes P severe emotional distress
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9
Q

Elements of trespass to land

A
  1. D intentionally;
  2. Physically invades P’s real property
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10
Q

Elements for trespass to chattel

A
  1. D intentionally;
  2. Intermeddles or uses;
  3. P’s personal property (chattel); and
  4. Causes damage or loss of use
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11
Q

Define

conversion

A

D intentionally exercises dominion and control over P’s property so as to deprive them of its use

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12
Q

What are the defenses to intentional torts?

A
  • Consent (express & implied);
  • Self-defense;
  • Defense of others;
  • Defense of property;
  • Necessity; and
  • Recapture
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13
Q

Elements for self-defense

A
  1. D subjectively and reasonably believes harm is imminent; and
  2. D uses proportional force to protect herself
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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

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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)

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16
Q

What elements are needed for a bystander recover for IIED?

A
  1. D intentionally or recklessly harmed a third party;
  2. P was present at the scene and witnessed the event;
  3. P was closely related to victim (i.e. immediate family);
  4. D knew P was present and closely related; and
  5. 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

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17
Q

True or false: Intentionally wrongful actions render D liable for all consequences of those acts, even if unintended and unforeseen

A

True

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18
Q

Elements of negligence

A
  1. Duty of care;
  2. Breach;
  3. Actual cause;
  4. Proximate cause; and
  5. Damages
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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

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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 an average person

⭐️ Objective standard

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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)

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22
Q

Is there an affirmative duty to intervene, rescue, or aid another?

A

No, unless:

  1. D has a special relationship with P;
  2. D creates a need for rescue; or
  3. D undertakes the rescue and P relies on the rescue attempt
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23
Q

What duty is owed to licensees?

A

Property owner must:

  1. Exercise reasonable care on the property;
  2. Warn or correct concealed dangers;
  3. That are known or should be known;
  4. In areas where P has access as a licensee

⚠️ Note: No duty to inspect for dangers

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24
Q

What is the attractive nuisance doctrine?

A

D is liable for child trespassers if:

  1. D knows of a dangerous, artificial condition on the property;
  2. That poses a risk of death or great bodily harm to children;
  3. In a place that D knows or should know children are present;
  4. Children are too young to appreciate the danger;
  5. The risk of harm to children outweighs the burden of fixing the condition; and
  6. D failed to remedy the dangerous condition
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25
Q

What is the standard care for children?

A

Child must act as a child of similar age, experience, and intelligence would.

⭐️ More subjective than RPP standard

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26
Q

Elements for negligence per se

A
  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
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27
Q

What duty is owed to invitees?

A

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

⚠️ Note: Duty is non-delegable

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28
Q

What is the duty of care for common carriers?

A

Highest duty of care; liable for even the slightest negligence

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29
Q

What is non-delegable duty?

A

Duty that does not absolve D of liability when contracted out to a third party (i.e. D is still ultimately liable)

30
Q

What duty is owed to foreseeable trespassers?

A

Property owner must:

  1. Reasonably carry out activities conducted on land; and
  2. Correct or warn of dangerous conditions on land (natural or artificial) that could cause death or serious bodily harm
31
Q

What duty is owed to unforeseeable trespassers?

A

None

32
Q

When has a breach of duty occurred?

A

When D fails to follow the appropriate standard of care

33
Q

Elements of res ipsa loquitur

A
  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
Q

What is actual cause (“cause-in-fact”) and what are the 3 tests to determine its existence?

A

Factual cause of P’s injuries.

Tests:

  1. “But-for;”
  2. Substantial factor; and
  3. Burden-shifting test
35
Q

What is proximate cause?

A

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
Q

Define

superseding cause

A

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
Q

Define

intervening cause

A

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
Q

What type of harm does P need to prove to recover on a negligence claim?

A

Actual damage; i.e. actual harm to person or property

Nominal damages & damages for solely for economic harm are not sufficient

39
Q

What types of damages can P recover?

A
  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
Q

What are the defenses to negligence?

A
  1. Contributory Negligence;
  2. Comparative Fault; and
  3. Assumption of Risk

⚠️ Note: Assume comparative negligence applies unless otherwise stated by MBE

41
Q

What is the default jurisdiction on the MBE, contributory negligence or comparative fault?

A

Pure comparative fault in which joint and several liability applies

42
Q

Define

pure comparative fault jurisdiction

A

Reduces P’s recovery in proportion to P’s fault

E.g. If P is 40% at fault, recovery will be reduced by 40%

43
Q

Define

modified comparative fault jurisdiction

A

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
Q

Define

negligent entrustment

A

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
Q

Elements for negligent infliction of emotional distress (NIED)

A
  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
Q

Elements for bystander negligent infliction of emotional distress (NIED)

A
  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
Q

Elements needed establish a prima facie case for strict liability

A
  1. D’s activities imposes an absolute duty to make safe;
  2. Breach of duty;
  3. Actual cause;
  4. Proximate cause; and
  5. Damages
48
Q

When is D strictly liable for injuries resulting from a wild animal?

A

When P’s injuries are:

  1. Unprovoked; and
  2. Caused by the animal’s foreseeable dangerous propensities or characteristics

⚠️ 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
Q

Define

abnormally dangerous activity

A
  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
Q

Elements of a strict products liability claim

A
  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
Q

What are the 3 types of product defects?

A
  • Manufacturing defects;
  • Design defects; and
  • Warning defects
52
Q

What are the defenses to strict products liability claim?

A
  1. Unforeseeable user misuse/alteration/modification
  2. Assumption of risk; or
  3. Product changed significantly after it left D’s control

⚠️ 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
Q

When is P considered to have “assumed the risk”?

A
  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
Q

Is the supplier of a component part liable for product defects?

A

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
Q

Elements of a products liability negligence claim

A
  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
Q

What are the 2 implied warranties?

A
  1. Merchantability; and
  2. Fitness for a particular purpose
57
Q

Elements for public nuisance claim

A
  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
Q

Elements of private nuisance claim

A

Substantial and unreasonable interference of P’s use or enjoyment of her land

59
Q

Differentiate between nuisance and trespass

A

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
Q

Elements of defamation

A
  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
Q

Define

slander per se

A

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
Q

If defamation involves a matter of public concern, what must P prove?

A
  1. Statement was false; and either:
  2. Actual malice (public figure) or negligence (private figure)
63
Q

What are the 3 main defenses to defamation?

A
  1. Truth (absolute defense);
  2. Consent; or
  3. Privilege: absolute (complete defense) & qualified (can be revoked)
64
Q

4 types of invasions of privacy

A
  1. Intrusion upon seclusion;
  2. Disclosure;
  3. False light; and
  4. Appropriation
65
Q

Defenses for invasion of privacy torts

A
  1. Privilege (absolute or qualified);
  2. Consent

⚠️ Truth is not a valid defense

66
Q

Define

respondeat superior

A

Doctrine that holds an employer liable for the unintentional tortious acts of an employee committed within the scope of their employment

67
Q

Define

negligent hiring

A

Holds employers primarily liable for the negligent hiring, supervision, entrustment, or retention of an employee

68
Q

When is an employer liable for an employee’s intentional tort?

A

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
Q

For vicarious liability, what acts are considered within the scope of employment?

A

Acts that:

  • Employee was hired to do or are part of her official duties; or
  • Benefit the employer
70
Q

Define

joint and several liability

A

Each D is fully and independently liable for the full amount of damages owed

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

71
Q

Define

contribution

A

If held jointly and severally liable, D can seek contribution from the other D’s for their share of the damages

Ex. If Brianne sought $100,000 from Max, he could seek contribution from Mat for his share of the damages.

More info: Contribution

72
Q

Compare contribution with indemnification

A

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 (8 decks)

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