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MBE Torts
| Question | Answer |
|---|---|
| Transferred Intent Applies to: (you can transfer the intent from person to person or from one of these torts to another) | - Assault - Battery - False Imprisonment - Trespass to Land - Trespass to Chattels |
| Damages are required for: | - Intentional Infliction of Emotional Distress (IIED) - Trespass to Chattels - Conversion |
| Assault | Act intended to cause reasonable apprehension (expectation) of imminent contact. (act, intent, causation) |
| Battery | an act intended to cause harmful or offensive contact to the plaintiff or his person |
| Plaintiff's Person could include: | pulling chair out from someone who is trying to sit down, riding a bike and someone pushes you over and you fall down- even if you aren't injured it can be battery, battery doesn't require physical injury. If your dog on a leash gets kicked by someone els |
| Acting in Concert: | creates joint and several liability among all parties sued by the plaintiff Basically the tort version of accomplice liability |
| Res Ipsa | (applies to negligence theory)- assumes duty and breach, but the Defendant must have exclusive control over the instrumentality that causes the plaintiff's harm- if there is multiple defendants then res ipsa does not apply. |
| False Imprisonment | an act by D intended to confine plaintiff within fixed boundaries - P must either be conscious of confinement OR - Harmed by it Time of confinement is IRRELIVANT |
| IIED | an extreme and outrageous act intended to cause severe emotional distress - Conduct that is beyond the bounds of common decency Damages are required, these damages don't have to be in the form of physical injury |
| Defense of Private Necessity | - A privilege to interfere with the real or personal property of another where reasonably necessary to avert imminent harm. ○ Private necessity is not a complete defense/privilege- it is qualified There is no liability for trespass, it is privileg |
| Conversion | an act of dominion and control intended to cause serious interference with Plaintiff's right to immediate possession. |
| Remedy for Conversion | full value at the time of conversion, in other words a forced sale. MISTAKE IS NO DEFENSE to conversion or trespass Requires tortious intent |
| Tortious Intent | D must intend the consequences of his act- ex first person intended to take item, and stolen while in possession- |
| Latter of Elements of Negligence | Duty Breach Actual Cause (but for) Proximate Cause Damages (must be proven to recover for negligence) |
| Duty | D owes an ordinary duty to exercise reasonable care under the circumstances. Test- objective reasonable person test. What effect to physical disabilities have? They may be considered. D owes a duty of reasonable care for a person with that disability |
| Mental Deficiencies/inexperience may not be considered | Stupidity is no excuse for negligent conduct |
| Affirmative Duty to Act G/R: says there is no duty to act | Exception: once the Defendant undertakes/ begins to give aid- must do so with REASONABLE CARE Exception to exception: Good Samaritan Statutes: apply to doctors and nurses who are exempted from negligent conduct, they will not be held negligent for ordi |
| Areas where there is an affirmative duty to act: | - The defendant creates the victim's peril Emergency situation: duty to act as a reasonable person under the same emergency conditions |
| Rescue Doctrine | independent duty of care is owed to a rescuer. ○ You will not be liable if your rescue attempt is negligent, you will not be liable for negligent conduct, if reckless or wanton then you can be liable. ○ If rescuer is injured in the attempt you can r |
| G/R there is no duty to control the conduct of a 3rd party unless one has the authority and actual ability to control the 3rd party and knows of the need to do so. | Ex: parent/child Employer/employee |
| Respondeat superior | master is vicariously liable for the negligent acts of his servant committed within the scope of employment. |
| Duty owed to an unknown trespasser: no duty owed Duty owed to a known or anticipated trespasser: duty to warn of known, dangerous, artificial conditions | Licensee: Social guest, police men and firemen Duty: duty to warn of known, dangerous, natural AND artificial conditions Applies to latent conditions, not obvious. |
| Attractive Nuisance Doctrine/ Trespassing Children's doctrine - A possessor of land is subject to liability for harm to trespassing children if: | 1. An artificial, dangerous condition must exist on the land 2. The possessor knows or should know children are likely to trespass 3. Child him/herself because of his age and immaturity fails to realize the danger or appreciate the risks involved (SU |
| Negligence Per Se | : breach of statutory duty that creates a presumption of negligence. Defense: when compliance would cause more harm that violation - When D is confronted with an emergency beyond his control |
| Comparative negligence is majority view Last clear chance does not apply in comparative negligence. | Comparative Negligence: Standard formula -P's recovery is reduced by the percentage of fault attributable to the Plaintiff. Assume Pure Comparative negligence applies- so they can recover no matter what percentage of fault |
| Modified Jurisdiction | Modified jurisdiction: to recover the P must be less than 50% at fault. |
| Joint and several liability | applies where two or more forces combine to produce one indivisible harm. - Each joint tortfeasor is liable for the full amount of P's harm. |
| Contributory Negligence | plaintiff's contributory behavior is a total bar to recovery. - Only exception if you can prove gross negligence (reckless and wanton behavior) - Last clear chance applies- does not apply to comparative- it is a negligent P's argument to avoid liabilit |
| Products Liability | G/R: a commercial seller is strictly liable for any defective condition unreasonably dangerous existing at the time of sale. Damages recoverable: both personal injury and property loss, NOT purely economic loss |
| Products liability plaintiffs and defendants | Class of P's: any foreseeable user, consumer or bystander (PRIVITY NOT REQUIRED- DON'T HAVE TO BE PURCHASER TO SUE) Class of D's: any commercial seller (manufacturer, whole seller, components part maker, anyone is fair game) |
| Products liability defenses | Defenses: 1. Assumption of Risk (contributory negligence is not) 2. Product misuse 3. Adequate warnings Design defect: danger/utility test, consumer contemplation test - Can prove if feasible alt design existed Reasonable misuse is foresee |
| Breach of an absolute duty of care proximately causing damage to P | - Abnormally Dangerous Activities - Ultra hazardous activities - Wild Animals |
| Defamation | Defamatory Statement of Fact (not opinion) Publication (published to any 3rd person who reasonably understands) Damages (general damages: includes injury to reputation (which is presumed) special damages: pecuniary damages (which are not required for li |
| Defamation Plaintiff must prove: | FAULT AND FALSITY If your Plaintiff is a public official or a public figure, P must establish MALICE: (knowing falsity or reckless disregard for the truth) If your Plaintiff is a private person there is s split: matter of public concern (P must establi |
| Defamation Defenses | Truth or Privilege (can be qualified or absolute) |
| Invasion of right to privacy | - Commercial appropriation: no consent to advertise a service or product ○ Publication required - False light ○ Publication Required - Public disclosure of private facts ○ Publication requried - Intrusion on seclusion |
| Doctrine of Transferred Intent | you intent to commit one intentional tort but a different one results, nonetheless you are responsible. Does not apply to Conversion or IIED |
| Battery | I. Harmful or offensive touching to the plaintiff's person II. Intent III. causation |
| Assault is committed when | the victim is put in reasonable apprehension of an offensive touching. |
| Shopkeepers Privilege: | If a storeowner reasonably believes that a theft has occurred, they are allowed to make a reasonable detention, in a reasonable manner for a reasonable period of time. |
| Standard of Care: | Standard of Care: Duty a landowner owes to people who come onto their land: |
| Duty for trespassers | 1. Unanticipated Trespasser: NONE 2. Anticipated Trespasser: duty to warn of known dangerous conditions |
| Duty to Licensee: | (guest): warn of all known dangerous artificial and natural conditions on property |
| Duty to Invitee | (paying customer): inspect and make premises safe. |
| A fetus born alive has a cause of action against | those who negligently cause prenatal injuries. |
| Causation 2 kinds | Actual: 'but for' some people call it factual Proximate: Look at intervening acts: Determine if it was foreseeable and doesn't break the chain of liability , or superseding and does break chain of liability. |
| Typical foreseeable intervening cause | 1. Subsequent illness or injury 2. Injury to rescuers 3. Negligence of medical personnel 4. Negligence of rescuers |
| Typical Examples of unforeseeable intervening causes | 1. Criminal acts of 3rd parties (usually) 2. Intentional tortious actions of 3rd parties- usually 3. Acts of God |
| Negligence Per Se: Violation of statute only establishes | a conclusive presumption with regard to the first to elements of negligence (duty and breach) but not conclusive proof of recovery, because the other elements have to be proven. |
| Contributory Negligence | if P was even 1% at fault it was a complete bar to recovery, unless p could establish that the D had the last clear chance to avoid the accident and prevent the harm from occurring. NOT THE RULE FOR THE TEST> |
| Pure Comparative negligence | P can recover even if fault is greater than the D's. Majority rule! |
| In an agricultural setting: bulls are not considered wild animals. | In an agricultural setting: bulls are not considered wild animals. |
| Unforeseeable misuse is a great defense to products liability. | Unforeseeable misuse is a great defense to products liability. |
| Nuisance | a disturbance that substantially interferes with one's use and enjoyment of one's own property.Ex: barking dogs, smells, sounds, vibrations |
| To sue for nuisance you must own or have a present possessory interest in the land. | To sue for nuisance you must own or have a present possessory interest in the land. |
| Four Torts qualify as invasions of privacy | 1. Commercial appropriation of plaintiff's picture or name; 2. Intrusion on plaintiff's seclusion or private affairs 3. Publication by defendant of facts placing plaintiff in a false light 4. Public disclosure of private facts about plaintiff |
| To recover in defamation | need not show money damages, all plaintiff needs to show is injury to their reputation or loss of standing in the community. |
| Best defense to defamation | the TRUTH! |
Created by:
staciaberry
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