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MBE Torts

Terms in this set (125)

Battery
(1) Defendant causes a harmful or offensive contact with another person; and
(2) acts with the intent to cause that contact or the apprehension of that contact.
What is a harmful or offensive contact in battery?
Harmful contact is one that causes an injury, pain, or illness.
Offensive contact is one that a person of ordinary sensibilities would find offensive. The victim need not be conscious of the touching, and if the victim is hypersensitive and defendant knows, then defendant may be liable
What damages do you get for battery?
Plaintiff can recover nominal damages and any damages flowing from the physical harm caused by the battery (eggshell plaintiff rule)
How do you get punitive damages in battery?
If the defendant acted outrageously or with malice.
Assault
Defendant engages in an act that:
(1) causes reasonable apprehension of an imminent harmful or offensive bodily contact; and
(2) the defendant intends to cause apprehension of such contact or to cause such contact itself.
What is required for plaintiff's apprehension in assault?
The apprehension must be reasonable and the plaintiff must be aware of the defendant's action
What is the time requirement for assault?
The assault must be imminent meaning without significant delay. Threats of future harm or hypothetical harm are not sufficient.
Can words constitute an assault?
No, unless defendant is able to carry out the threat imminently and takes action designed to put the victim in a state of apprehension (EX: defendant comes up behind the plaintiff in a dark alley and says, "Your money or your life."
What are the damages for assault?
Plaintiff can recover nominal damages and any damages from physical harm flowing from the assault along with punitive damages where defendant acts outrageously or with malice.
Intentional Infliction of Emotional Distress
Defendant intentionally or recklessly engages in extreme and outrageous conduct that causes the plaintiff severe emotional distress
What is the intent requirement for IIED?
The defendant must:
(1) intend to cause severe emotional distress; OR
(2) act with recklessness as to the risk of causing severe emotional distress.
What is extreme and outrageous conduct in IIED?
Conduct that exceeds the possible limits of human decency, so as to be entirely intolerable in a civilized society.
When are courts more likely to find IIED?
(1) the defendant is in a position of authority or influence over the plaintiff; OR
(2) the plaintiff is a member of a group that has a heightened sensitivities (young children or elderly)
What are the constitutional limitations on IIED for public figures?
Public figures and public officials cannot recover unless they can show that the words contain a false statement of fact that was made with "actual malice."
IIED towards third parties - immediate family member
An immediate family member of the victim who is present at the time of the conduct and perceives the conduct may recover for IIED regardless of whether that family member suffers bodily injury as a result of the distress.
IIED towards third parties - bystander
A bystander can recover for IIED if present at the time of conduct, perceives the conduct, and suffers distress that results in bodily injury.
False Imprisonment
(1) Defendant intends to confine or restrain another within fixed boundaries;
(2) the actions directly or indirectly result in confinement; and
(3) Plaintiff is conscious of the confinement or harmed by it
Describe the area element in false imprisonment.
The area can be large and it need not be stationary.
What are the methods for confinement for false imprisonment?
Defendants can use physical barriers, physical force, threats, invalid invocation of legal authority, duress, or refusing to provide a safe means of escape.

A court may also find false imprisonment when the defendant refused to perform a duty to help a person escape.
What is shopkeeper's privilege?
A shopkeeper can, for a reasonable time and in a reasonable manner, detain a suspected shoplifter.
What is the intent requirement for false imprisonment?
The defendant must act:
(1) with the purpose of confining the plaintiff; OR
(2) knowing the plaintiff's confinement is substantially certain to result.
What are the defenses to intentional torts?
Consent, Self-defense/defense of others/defense of property, parental discipline, and privilege of arrest
What is express consent?
The plaintiff, by words or actions, manifests the willingness to submit to the defendant's conduct.
What is consent by mistake?
valid defense unless defendant caused the mistake or knew of it and took advantage
What is consent by fraud?
invalid if it goes to an essential matter
What is implied consent?
the plaintiff is silent where their silence and continued participation can reasonably be construed as consent
What are examples of implied consent?
Emergencies, injuries arising from athletic contests, and mutual consent to combat
How does capacity affect consent?
If there is a lack of capacity, that can undermine the validity of consent (e.g., youth, intoxication, incompetency)
What is self-defense?
A defendant can use reasonable force, or force that is proportionate, to defend against an offensive contact or bodily harm
How does self-defense work with regard to initial aggressors and injuries to bystanders?
An initial aggressor may not claim self-defense unless the other party has responded to nondeadly force with deadly force.

A person acting in self-defense is not liable for injury to bystanders as long as the injury was accidental and the actor was not negligent towards the bystander.
Describe defense of property
A defendant may use reasonable force if the he reasonably believes it is necessary to prevent tortious harm to the property. No deadly force may be used.
How does defense of property work with regard to recapture of chattels?
Reasonable force may be used to reclaim personal property that has been wrongfully taken, but only if your first request its return, unless that would be futile.

If the original taking was lawful, then only peaceful means may be used.
How does defense of property work with regard to to regaining possession of land?
Common law - reasonable force permitted

Modern law - use of force no longer permitted; only legal process
What is parental discipline?
parents may use reasonable force as necessary to discipline children.
What is the privilege of arrest for private citizens?
A private citizen is permitted to use reasonable force to make an arrest in the case of a felony IF:
(1) the felony has actually been committed; AND
(2) the arresting party has reasonable grounds that the person being arrested has committed the felony.

The citizen MUST know whether a felony has actually occurred.
What is the privilege arrest for police?
Must reasonable believe that a felony has been committed and that the person arrested committed it.
What is the privilege of arrest for misdemeanors?
Police: only be made if the misdemeanor was committed in the officer's presence.

Private citizen: only be made if there is a "breach of the peace."
What is trespass to chattels?
An intentional interference with the plaintiff's right to possess personal property either by:
(1) dispossessing the plaintiff of the chattel; OR
(2) using or intermeddling with the plaintiff's chattel; OR
(3) damaging the chattel.
What are the damages for trespass to chattels?
Plaintiff may recover actual damages, damages resulting from the loss of use, or the cost of repair.

In cases involving use or intermeddling, the plaintiff may only recover actual damages.
What is conversion?
The defendant intentionally committed an act depriving the plaintiff of possession of his chattel or interfering with the plaintiff's chattel in a manner so serious as to deprive the plaintiff entirely of the use of the chattel.
What are the damages for conversion?
Plaintiff can recover the chattel's full value at the time of conversion
What are the factors the court considers when deciding between trespass to chattels or conversion?
(1) the duration and extent of the interference;
(2) the defendant's intent to assert a right inconsistent with the rightful possessor;
(3) defendant's good faith;
(4) expense or inconvenience to the plaintiff; and
(5) extent of harm.
What is trespass to land?
Defendant intentionally causes a physical invasion of someone's land
Who is the rightful plaintiff in trespass to land?
Anyone in possession can bring an action, not just the owner.
What are damages for trespass to land?
No proof of actual damages is required
Necessity as defense to trespass to land
Available to a person who enters onto the land of another or interferes with that individual's personal property to prevent an injury or other severe harm
What is private necessity?
the defendant must pay for actual damages she has caused, the defendant is not liable for nominal damages, and the landowner cannot use force to exclude the person.
What is public necessity?
private property is intruded upon or destroyed when necessary to protect a large number of people from public calamities, No liability for damages.
What is private nuisance?
An activity that substantially and unreasonably interferes with another's use and enjoyment of land
What is the interference requirement for private nuisance?
Must be annoying to an ordinary, reasonable person and courts will balance the interference with the utility of the nuisance.
What is not a nuisance?
the blocking of sunlight or view unless done in spite
What are defenses to private nuisance?
compliance with state or local administrative regulations; coming to the nuisance
What is public nuisance?
An unreasonable interference with a right common to the public
Who can bring a claim for public nuisance?
public official can bring an action on behalf of the public to abate the nuisance.

private individuals cannot generally recover unless the individual has been harmed in a special or unique way, different from the general public.
What are the general principles of duty?
A duty of care is owed to all persons who may foreseeably be injured by the defendant's course of conduct. In general, there is no duty to act affirmatively, even if the failure to act appears to be unreasonable.
What is the scope of duty?
A duty is owed to a plaintiff only if the plaintiff is a member of the class of persons who might be foreseeably harmed by the conduct.
When is there an affirmative duty to act?
(1) When a person voluntarily aids or rescues another has a duty of reasonable care in the performance of that aid or rescue.
(2) Placing another in danger
(3) By authority - a person with the ability and actual authority to control another has a duty to exercise reasonable control
(4) by relationship - common carrier; innkeeper
What is the general standard of care?
reasonably prudent person under the circumstances.
How does physical characteristics affect standard of care?
It can modify the standard when particular physical characteristics are taken into account (e.g., blindness)
How does intoxication affect standard of care?
objective standard unless the intoxication was involuntary
How does children affect standard of care?
modified standard - reasonable child of similar age, intelligence, and experience unless engaged in adult activities (e.g., driving a care)
Standard of care - common carriers and innkeepers
traditionally utmost care, but now, innkeepers only liable for ordinary negligence and common carriers have a higher standard
standard of care - automobile drivers
Guest statutes - drivers liable only for grossly negligent, wanton, or willful conduct

Otherwise apply a general duty of reasonable care standard to driver
standard of care - bailor and bailees
(1) bailor must warn a gratuitous bailee of known dangerous conditions;
(2) if the bailor receives the sole benefit, then the bailee has a lesser duty.
(3) if the bailee receives a benefit, then he has higher duty of care; even slight negligence can result in liability
standard of care - emergency situations
standard of care is that of a reasonable person under the same circumstances
Standard of care for possessors of land
Trespassers: refrain from willful, wanton, intentional or reckless misconduct (no duty to undiscovered, but if discovered, must warn of hidden dangers)

Licensees: duty to make the property reasonable safe or warn licensees of concealed dangers (no duty to inspect for dangers)

Invitees: duty of reasonable care - to inspect the property, discover unreasonably dangerous conditions, and take reasonable steps to protect the invitee from them. (cannot delegate this duty)
What is the attractive nuisance doctrine?
may be liable for injuries to trespassing children IF:
(1) an artificial condition exists in a place where the owner knows or has reason to know that children are likely to trespass;
(2) the land possessor knows or has reason to know that the artificial condition poses an unreasonable risk of death or serious bodily harm;
(3) children do not discover or cannot appreciate the danger, due to their age;
(4) the utility of maintaining the condition is slight compared to the risk of injury; AND
(5) the land possessor fails to exercise reasonable care
Standard of care - landlord
Landlord must:
(1) maintain safe common areas;
(2) warn of hidden dangers; and
(3) repair hazardous conditions
What is breach of duty?
violation of the standard of care
Breach of duty - custom, generally
evidence of custom is admissible, but not dispositive
breach of duty - custom, professionals
custom is admissible and dispositive
breach of duty - custom, doctors
national standard and patients must give informed consent
What is informed consent?
Doctors must explain risks of medical procedures UNLESS:
(1) risks are commonly known;
(2) patient is unconscious;
(3) patient waives/refuses information;
(4) patient is incompetent; OR
(5) patient would be harmed by disclosure
Negligence per se
(1) criminal law or regulatory statute imposes a particular duty for the protection or benefit of others;
(2) defendant violates the statute;
(3) plaintiff must be in the class of people intended to be protected by the statute;
(4) the accident must be the type of harm that the statute was intended to protect against; and
(5) the harm was caused by a violation of the statute
Defense for negligence per se
Excuse:
(1) defendant may show that compliance with statute would be more dangerous than violation
(2) compliance was impossible or emergency justified violation
(3) incapacity, but exercised reasonable care in trying to comply
Res Ipsa Loquitur
(1) the accident was of a kind that does not ordinarily occur in the absence of negligence;
(2) it was caused by an agent or instrumentality within the exclusive control of the defendant; and
(3) it was not due to any action on the part of the plaintiff
Substantial factor test
used when there are multiple defendants to prove causation.

test is whether the defendant's tortious conduct was a "substantial factor" in causing the harm
Alternative causation
used when there are multiple defendants to prove causation
Court will shift burden to defendants
Concert of action
if two or more defendants were acting together collectively and that causes the plaintiff's harm, then all defendants will be jointly and severally liable.
Loss of Chance doctrine
if a doctor negligently reduces the plaintiff's chance of survival, then that plaintiff can recover for the lost of chance of recovery
Proximate causation
was the injury that occurred within the scope of the defendant's breach?
What is intervening cause
does not break the chain of causation because it was within the scope of what made the conduct negligent
What is superseding cause?
unforeseeable event that does break the chain of causation
What are the rules for damages for negligence?
(1) actual, compensatory damages
(2) Plaintiff must mitigate damages
(3) personal injury damages which includes medical expenses, lost income and reduced earning capacity, and pain and suffering
(4) property damage, plaintiff can recover the difference in the market value of the property before and after injury
What is collateral source rule
benefits or payments made to plaintiff from outside sources (insurance) are not credited against the liability of defendant
Punitive damages in negligence
if defendant acted willfully, wantonly, recklessly, or with malice
What is negligent infliction of emotional distress?
a plaintiff can recover IF:
(1) the plaintiff was within the "zone of danger" of the threated physical impact; and
(2) the threat of physical impact caused emotional distress
NIED - bystander
can recover IF:
(1) bystander is closely related to the person injured by defendant;
(2) present at scene of injury; and
(3) personally observe the injury.
What is wrongful death action?
brought by decedent's estate to recover losses suffered by spouse or representative as a result of death (loss of economic support/consortium)
What is survival action?
brought by representative of decedent's estate on behalf of decedent for claims that decedent would have had at the time of death like damages resulting from personal injury or property damages
Wrongful life claim
claim by child for defendant's negligent failure to properly perform a contraceptive procedure or diagnose a congenital defect
Wrongful birth claim
claim by parents for defendant's negligent failure to properly perform a contraceptive procedure or diagnose a congenital defect
Respondeat Superior
employer is held vicariously liable for the negligence of an employee, if it occurred within the scope of employment.

Employer is generally not liable for the intentional torts of employees unless the conduct is within the scope of employment
Frolic vs detour
applies in respondeat superior situation and frolic is a major deviation and detour is minor deviation from scope of employment
independent contractor v. employee
if the employer retains the right of control over the way that employee does the work, then the courts will treat that person as an employee.
Non delegable duties (respondeat superior)
inherently dangerous activities;
duties to the public or specific plaintiffs for certain types of work, such as construction work by a roadway; and
shopkeepers duty to keep premises safe
Apparent agency doctrine (respondeat superior)
an independent contractor will be treated as an employee if:
(1) the injured person accepted the IC's services based on a reasonable belief that the IC was an employee, based on manifestations from the employer; and
(2) the IC's negligence is a factual cause of harm to one who receive the services, and such harm is within the scope of liability
Business partners (vicarious liability)
can be liable for the torts of other business partners committed within the scope of the business's purpose
Parents (vicarious liability)
generally not liable for minor children's torts but can be negligent in supervision
dram shop liability
holds bar owners, bartenders, and social hosts liable for injuries caused when people drink too much alcohol and injure third parties
Immunity - government v. proprietary functions
governmental - immunity applies
proprietary - immunity waived
Immunity - government officials
discretionary functions - immunity applies
mandatory functions - immunity waived
Negligence defenses
Contributory negligence and last clear chance;
pure comparative negligence;
modified comparative negligence;
assumption of risk
Express assumption of risk
is the waiver clear and enforceable?
not enforceable when:
(1) the waiver disclaims liability for reckless or wanton misconduct;
(2) gross disparity of bargaining power
(3) party seeking to enforce provision offers services of great importance to public;
(4) subject to contract defense; OR
(5) against public policy
3 areas of strict liability
Wild animals, abnormally dangerous activities, and defective products
Abnormally dangerous activities
a defendant engaged in an abnormally dangerous activity will be held strictly liable for personal injuries and property damage caused by the activity, regardless of the precautions to prevent the harm.

Defendant is liable for the harm that flows from the risk that made the activity abnormally dangerous.

Contributory Negligence is not a defense
Wild animals (strict liability)
animals that, as a species or class, are not customarily kept in the service of humankind
wild animal liability to trespassers
licensees and invitees - strictly liable
trespassers - not strictly liable
Domestic animals (strict liability)
If owner knows or has reason to know that the animal has dangerous propensities the owner is strictly liable.

Owner of any animal is strictly liable for reasonably foreseeable damage caused by his animal while trespassing on another's land unless household pets and animals on public roads
Defenses to strict liability
assumption of risk
three types of products liability
design defect
manufacturing defect
warning defect
products liability elements
1. product was defective;
2. defect existed when product left defendant's control; and
3. defect caused plaintiff's injury when used in foreseeable way
manufacturing defect
product deviated from its intended design
product does not conform to the manufacturer's specs
design defect
Consumer expectation test: The product is defective in design if it is less safe than the ordinary consumer would expect

Risk-utility test: the product is defective in design if the risks outweigh its benefits; must show that there is a reasonable alternative design
failure to warn defect
foreseeable risk that is not obvious to an ordinary user
who can be a defendant in a products liability action?
anyone who sells the product when it is defective and must be in chain of distribution and in the business of selling
defense to products liability
assumption of risk, product misuse, substantial change in product, compliance with governmental standards, state of the art
Elements for defamation
1. defendant made a defamatory statement;
2. that is of and concerning the plaintiff;
3. the statement was published to a third party who understood its defamatory nature; and
4. damages the plaintiff's reputation
defamation constitutional limitations
public official/figure - plaintiff must prove defendant knew that it was false or acted with reckless disregard for the truth. For damages, you need to show actual malice

private individual - plaintiff must prove the statement was false and that the person made the statement was negligent with respect to falsehood
libel vs slander
libel - written, general damages
slander - spoken, special damages
slander per se
1. commission of a serious crime
2. unfitness for a trade or profession
3. having a loathsome disease
4. severe sexual misconduct
defense to defamation
truth, consent, privileges (absolute and conditional)
Absolute privilege (defamation)
(1) remarks made during judicial proceedings, (2) by legislators during proceedings, (3) in "compelled" broadcasts, (4) between spouses
Conditional privilege (defamation)
made in good faith pursuant to duty or responsibility
Invasion of privacy claims
1. intrusion upon seclusion: defendant intrudes upon the plaintiff's private affairs, in a manner that is objectional to a reasonable person
2. false light - defendant (1) makes public facts about the plaintiff, (2) that place the plaintiff in a false light, (3) which would be highly offensive to a reasonable person
3. appropriation of the right to publicity - someone (1) appropriates another's name or likeness (2) for the defendant's advantage (3) without consent and (4) causes injury
4. public disclosure of private facts - defendant publicizes a matter that is highly offensive to a reasonable person and not of legitimate concern to the public concerning the private life of another.
THIS SET IS OFTEN IN FOLDERS WITH...