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PMBR MBE FC Torts
| Question | Answer |
|---|---|
| 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
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