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PRE Torts
MBE Preview
| Question | Answer |
|---|---|
| Transferred intent | 1. Assault, 2. Batter, 3. False imprisonment, 3. Trespass to land, and 4. Trespass to chattels From person to person, or tort to tort |
| Damages required | 1. Intentional infliction of emotional distress, 2. Trespass to chattels, and 3. Conversion |
| Assault | Act intended to cause reasonable apprehension (expectation) of imminent contact Apprehension = Intended harmful contact Battery can be transferred to assault |
| Battery | Act intended to cause harmful or offensive contact to P or his person (no actual contact, but object connected to person, e.g. chair/bike/dog on walk with owner) Nominal recovery for battery (not negligence) |
| Acting in concert | Creating joint and several liability among all actors Actors must have exclusive control causing harm Must prove concerted action between all Ds |
| False imprisonment | Act by D, intended to confine P in fixed boundaries P must be conscious or harmed by confinement Time of confinement is irrelevant |
| Intentional infliction of emotional distress | Extreme and outrageous conduct (beyond bounds of common decency), intended to cause severe emotional distress Damages required (not just physical harm) Fall back tort, so prove obvious tort first |
| Private necessity defense | Privilege to interfere with real or personal property of another where reasonably necessary to avert reasonable harm Qualified privilege = NO liability for trespass, but YES liability for damages |
| Conversion | Act of dominion and control, intended to cause serious interference with P right to immediate possession Remedy- full value at time of conversion Lost, destroyed, or stolen NEED- tortuous intent (intended consequence of act) Mistake is no defe |
| Negligence | 1. Duty, 2. Breach, 3. Actual cause (but-for), 4. Proximate cause, and 5. Damages If D- want cut off liability goes up so argue duty before proximate cause If P- want impose liability so go down so argue proximate cause before duty |
| Negligence- Duty | D owes ordinary duty to exercise reasonable care under circumstances Test- objective- Reasonable person standard |
| Negligence- Duty exceptions | Physical disability: May be considered so duty changes to duty of reasonable care for a person with that disability Mental deficiency: May NOT be considered so reasonable person standard (stupidity = no excuse) |
| Negligence- Duty to act | G/R: No legal duty to act Caveat: Once D undertakes to give aid, must do so with reasonable care Exception: Doctor/nurse is NOT held liable for ordinary negligence unless acts wanton or reckless |
| Negligence- Duty to act in an emergency | Duty to act as a reasonable person under emergency conditions |
| Negligence- Rescue doctrine | Independent duty of care owed to rescuee, therefore NOT liable to P if rescue negligently causing further harm, unless acting wantonly or recklessly Rescuer may recover if injured during rescue |
| Directed verdicts | P motion generally denied But, look to both motions |
| Negligence- Duty to act- Conduct of 3rd parties | G/R: No duty to control conduct of 3rd parties, unless authority and actual ability to control 3rd party AND knows of need to do so |
| Negligence- Duty to act- Conduct of 3rd parties Respondent Superior | Master is vicariously liable of NEGLIGENT act of servant committed within the scope of employment |
| Negligence- Duty owed to person coming onto land | Obvious conditions Unknown trespasser= NO duty Known trespasser= Duty to warn of KNOWN, DANGEROUS, ARTIFICIAL conditions Social guest (invitee, includes police and fireman)= Duty to warn of KNOWN, DANGEROUS, NATURAL, and ARTIFICIAL conditions |
| Negligence- Duty owed to person coming onto land Attractive nuisance doctrine | Liability for harm to trespassing children if- 1. Artificial, dangerous condition on land, 2. Possessor knows or should know child likely to trespass, 3. Child because of age (immaturity) fails to realize danger or appreciate risk, and |
| Negligence- Duty owed to person coming onto land Attractive nuisance doctrine continued... | 4. Utility of maintaining condition slight when compared to risk Subjective test |
| Negligence per se | Breach of statutory duty of are creating presumption of negligence Defenses- 1. Compliance causes more danger than violation, and 2. D confronted with emergency beyond control |
| Comparative negligence (majority) | P recovery is reduced by percentage of fault attributable to P Liable for full amount (seek contribution) Assumption of recovery not matter what percentage of fault Jurisdiction may modify- P must be less than 50% at fault Last clear chance= a |
| Comparative negligence (majority)- Joint and several liability | 2 or more forces combined produce one indivisible harm so each tortfeasor is liable for full amount of P's harm |
| Contributory negligence (minority) | G/R: P's contributory negligence bars recovery, unless D is more at fault than P by being reckless or wanton Last clear chance= Negligent P avoids liability where D had last clear chance to avoid P harm and did NOT do so, unless, P acted reckless/wanto |
| Products liability general rule | G/R: Commercial seller strictly liable for any defective condition that is unreasonably dangerous and exists at time of sale |
| Products liability P, D, and damages | Who P? Any foreseeable user, consumer, or bystander (no privity required) Class of D? Any commercial seller (distributor, whole saler, etc.) Damages- Personal injury and property loss, but NOT economic loss |
| Products liability defenses | 1. Assumption of risk (not contributor negligence) 2. Product misuse (Reasonable misuse is foreseeable) 3. Adequate warnings (Not always clear, conspicuous, prominently displayed) |
| Products liability design defect | Prove if seller is aware a reasonable economic alternative exists Danger is not apparent until product reaches the public, or else no reason for alternative design if unknown |
| Strict liability | Breach of absolute duty of care, proximately causing harm to P No negligence |
| Strict liability | 1. Abnormally dangerous activities (P harm results from abnormal propensity from abnormally dangerous activity), 2. Ultra hazardous activities, 3. Wild animals |
| Defamation to privacy | 1. Defamatory statement of facts, NOT opinion, 2. Publication to any 3rd person who reasonably understands, 3. Damages- a. General injury to reputation (presumed) b. Special pecuniary loss (not required in lible/slander per se) |
| Defamation to privacy continued... | 4. P has to prove fault AND falsity a. Public official/figure= Must establish malice (knowing falsity or reckless disregard for truth) b. Private person= Public (establish negligence), OR Private concern (just prove publicati |
| Defamation to privacy defenses | 5. a. Truth b. Privilege i. Qualified, or ii. Absolute No negligence if public official P |
| Privacy action | 1. Commercial appropriation, 2. False light privacy, 3. Public disclosure of private facts, 4. Inclusion on seclusion (true privacy action) Publication required for first 3 Truth is NO defense Special damages NOT required Do NOT survive |
| Privacy action- Commercial appropriation | Appropriation of P name or likeness without consent to advertise a service or product |
| Private nuisance | Substantial and unreasonable interference with P's use and enjoyment of his property "Coming to nuisance" is only one of many factors to consider |
Created by:
dmoore147
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