PMBR MBE FC Torts
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| 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
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| 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
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| 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
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| 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
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| 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
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| 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
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| 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
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| 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.
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| Public necessity | Defendant injures a private property interest to protect the community. A Complete defense.
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| 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.
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| 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
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| 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
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| Unintentional Entries onto the Land | A person is not liable for trespass for negligent or reckless entries unless he causes damage to the land.
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| False Imprisonment | • An act by the defendant that confines or constrains plaintiff
• To a bounded area;
• Defendant intends to confine
• Causation
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| 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.
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| 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
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| Duties of Care - Trespasser/ Licensee/ Invitee | Trespasser - Unknown - No Duty
Licensee - Friend - Warn or Known Dangers
Invitee - Customer - 1)Inspect; 2)Make safe
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| Negligence Per Se | Statute designed to:
• Prevent this type of injury
• Protect this class of plaintiff
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| 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
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| 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
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| 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
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| 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.
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| 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.
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| Foreseeable Intervening Causes | • Negligent rescue
• Subsequent medical malpractice
• Subsequent disease
• General negligence
If foreseeable ---> Defendant remains liable
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| Unforeseeable/Superseding Causes | • Acts of God
-Lightning
-Floods
• Intentional torts of third parties
• Intentional crimes of third parties
If unforeseeable ---> Defendant not liable (superseding)
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| Foreseeable Intervening Causes | • Negligent rescue
• Subsequent medical malpractice
• Subsequent disease
• General negligence
If foreseeable ---> Defendant remains liable
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| 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.
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| 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.
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| 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.
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| Defenses to Strict Liability | • Assumption of the risk
• Adequate warning
• Product misuse
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| 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.
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| Misrepresentation | • False statement
• Scienter
• Intent to induce plaintiff to act
• Justifiable reliance
• Damages
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| Private Nuisance | A disturbance that creates a substantial and unreasonable interference with the use and enjoyment of one’s property.
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| 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
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| 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
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| 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
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| Invasion of Right to Privacy | • Appropriation
• False light
• Intrusion upon seclusion
• Public disclosure of private facts
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