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PMBR MBE FC Torts

QuestionAnswer
Approach to Torts Step 1- Identify the cause of action Step 2- Look for elements Step 3- Consider defenses Step 4- Knock out wrong answer choices Step 5- Choose the best of what’s left
3 Types of Battery -D intends to commit an offensive/harmful contact,and an O/H contact results -D intends to commit an assault,and an O/H contact results -D commits an act, which he knows/should know has substantial certainty that harmful/offensive contact will occur
Consent -If the victim gives permission,what would otherwise be tortious is instead privileged -Indiv can convey consent in words/nonverbal gestures -Indiv implies consent when his conduct reasonably conveys consent -Consent can be implied by law(med emergency
Assault • An act by the defendant creating a reasonable apprehension in plaintiff of immediate harmful or offensive contact • Intent on the part of the defendant to bring about apprehension of immediate harmful or offensive contact in the plaintiff • Causation
Intentional Infliction of Emotional Distress • Extreme and outrageous conduct • Intent by defendant that plaintiff suffer severe emotional distress, or recklessness • Causation • Damages severe emotional distress
IIED- Third Party Recovery When D causes physical harm to 3party and P suffers emotional distress because of her relationship to injured person: -P must be present -P is close relative to the injured person -D knew/should have known of the presence of the P -Actual damages requ
Trespass to Chattels versus Conversion -Trespass to chattels- D interferes with smn's lawful possession of chattel in phys quantifiable contact,or by taking/destroying/barring owner's access,etc -Conversion- greater wrong;b/c trespass to chattels-actionable per se Factors-duration,value,dama
Necessity A defense which allows the defendant to interfere with the property interests of an innocent party in order to avoid a greater injury. The defendant is justified in her behavior because the action minimizes the overall loss.
Public necessity Defendant injures a private property interest to protect the community. A Complete defense.
Private necessity Defendant injures a private property interest to protect a private interest valued greater than the appropriated or injured property. An incomplete defense. The defendant is privileged to interfere with another's property, but is liable for the damage.
Trespass to Chattels or Larceny? • Who are the parties? • Criminal law requires an intent to permanently deprive the owner of possession • Torts law requires only and intent to take, regardless of knowledge of ownership
Intentional Entries onto the Land • Defendant is liable for intentional entries onto the land of another • Damage to the land is not required • Mistake is no defense
Unintentional Entries onto the Land A person is not liable for trespass for negligent or reckless entries unless he causes damage to the land.
False Imprisonment • An act by the defendant that confines or constrains plaintiff • To a bounded area; • Defendant intends to confine • Causation
Shopkeeper’s Privilege If a shopkeeper reasonably believes that a theft has occurred, he is privileged to make a detention in a reasonable manner for a reasonable period of time.
Duty • What? -A legal requirement to act as an ordinary, prudent, reasonable person taking precaution against unreasonable risks of injury to others • To Whom? -All foreseeable plaintiffs • When? -Everyday situations -Emergency situations
Duties of Care - Trespasser/ Licensee/ Invitee Trespasser - Unknown - No Duty Licensee - Friend - Warn or Known Dangers Invitee - Customer - 1)Inspect; 2)Make safe
Negligence Per Se Statute designed to: • Prevent this type of injury • Protect this class of plaintiff
Res Ipsa Loquitur • The accident does not normally occur absent negligence on the part of the defendant AND • The instrumentality causing the accident was within the defendant’s exclusive control
Contributory Negligence -Negligent P is barred from recovery -Minority Rule -Last Clear Chance Rule- negligent P can still recover if he can show D had last clear chance to avoid the injury and failed to do so.Only use if fact pattern says this is a Contributory Negligence Jx
Comparative Negligence A negligent P’s recovery will be reduced by % of his own negligence Pure- Can recover even if P’s negligence exceeds D’s Modified- Recovery only if P’s negligence is less than D’s • MBE Rule- Pure Comparative Negligence • No Last Clear Chance Doctrin
Joint Tortfeasors Where the combined negligent acts of two or more tortfeasors cause an indivisible injury (incapable of apportionment), each tortfeasor is held jointly and severally liable.
Release -TF's pretrial agreement to pay share of damages awarded to P,settlement precedes the Ct's determination of each TF's relative liability. -Settling D's % of fault is deducted from the damages awarded regardless of the actual payment made by settling D.
Foreseeable Intervening Causes • Negligent rescue • Subsequent medical malpractice • Subsequent disease • General negligence If foreseeable ---> Defendant remains liable
Unforeseeable/Superseding Causes • Acts of God -Lightning -Floods • Intentional torts of third parties • Intentional crimes of third parties If unforeseeable ---> Defendant not liable (superseding)
Foreseeable Intervening Causes • Negligent rescue • Subsequent medical malpractice • Subsequent disease • General negligence If foreseeable ---> Defendant remains liable
Abnormally Dangerous Activities - subject to strict liability If the activity creates a risk of serious injury to the land or chattels of P or to the P himself & this risk cannot be eliminated through the exercise of due care, and the particular activity is not generally performed in that particular physical area.
Wild Animals • An owner of a wild animal is strictly liable to persons who are injured by the animal. • Examples- Lions, tigers, bears, elephants, wolves, monkeys, and sharks, snakes, spiders.
Strict Products Liability One who sells a product in a defective condition unreasonably dangerous to the user or consumer is held strictly liable for the harm or injury that is caused.
Defenses to Strict Liability • Assumption of the risk • Adequate warning • Product misuse
Products Liability Defendants •One who sells a product in a defective condition unreasonably dangerous to the user or consumer. •Defendant must be a commercial seller of such products.
Misrepresentation • False statement • Scienter • Intent to induce plaintiff to act • Justifiable reliance • Damages
Private Nuisance A disturbance that creates a substantial and unreasonable interference with the use and enjoyment of one’s property.
Defamation - Definition Defamatory -> Statement of fact, not opinion Publication -> To any 3rd party who reasonably understands Damages -> General damages presumed, special damages required Except libel & slander per se
Defamation - Π’s Standard of Proof Fault & Falsity Public official, public figure -> Malice Private person: 1. Matter of public concern -> negligence 2. Matter of private concern -> publication only
Slander Per Se Defamatory statement imputes: • Loathsome disease • Unchastity to a woman • Improper conduct in one’s trade, business or profession • False accusation of a crime
Invasion of Right to Privacy • Appropriation • False light • Intrusion upon seclusion • Public disclosure of private facts
Created by: shigal on 2013-05-21



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