Torts MBE Approaches Flashcards

1
Q

Negligence Question

A

Duty?
Breach?
Causation?
Damages?

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2
Q

Duty of Care

A

Did D owe a duty to P?

D owes a duty of care to all foreseeable Plaintiffs.

Standard: Reasonable person

  • Except: professionals, children, emergency situations
  • Except: Premises liability facts
  • Except: Negligence per se
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3
Q

Breach of Duty

A

“How should the court rule on the motion?”

Is there any reasonable argument that D/P acted reasonably/unreasonable? Is there any evidence justifying taking the case away from the jury?

NEGLIGENCE PER SE:

  • Criminal statute designed to prevent the kind of harm sustained by the plaintiff
  • Plaintiff is within the class of persons protected
  • ONLY ESTABLISHES duty and breach.
  • Directed verdict ONLY if there’s no proximate cause.

RES IPSA LOQUITUR

  • Only the issue when there’s no direct evidence for the circumstances of the injury.
  • Facts will not tell you how the injury occurred.
  • If there are facts that tell you how it occurred, it’s NOT res ipsa.
  • If P establishes res ipsa, D cannot succeed on a directed verdict.
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4
Q

Causation

A

PROXIMATE CAUSE

  • As long as the intervening force is foreseeable, D’s liability is not cut off.
  • Only compelling facts showing unforeseeability cut off liability.

COMPARATIVE/CONTRIBUTORY

  • “Assume pure comparative, unless facts tell you otherwise”
  • PURE: P can be 99% at fault, but can still recover with reduced recovery by %
  • MODIFIED: P cannot recover if more than 50% at fault
  • CONTRIBUTORY: P cannot recover if at fault.
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5
Q

Intentional Torts

A

Recall the elements of the particular intentional tort

Connect the facts to the intentional tort being tested

P has to prove intent, and that the harm she suffered was because of P’s intentional conduct

Damages are not an element of intentional torts

BUT
- IIED does not require intent, recklessness is sufficient (?), but damages are required.

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6
Q

Battery

A

Intentional harmful or offensive contact to the P’s person.

Anything P is touching or holding is part of the person

  • Transferred intent (applies to battery, assualt, false imprisonment, trespass to land/chattel.
  • EX: D intended to commit Tort A, but actually committed Tort B. D is still liable for intentional tort B.
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7
Q

Assault

A

Intentional creation of apprehension in the P of harmful or offensive contact (battery)

  • Apprehension only means awareness of an imminent contact.
  • Apprehension must be reasonable (look out for facts that D could not reasonably be placed in an awareness of imminent battery.)
  • Need something more than words. (Negating words can negate imminence of actions)
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8
Q

False Imprisonment

A

Intent to confine to a bounded space.

  • Threats are sufficient for restraint, and omissions are sufficient where there’s a prior obligation to permit someone to leave.
  • No minimum time for confinement.
  • Time only impacts damages, not the prima facie case.
  • P must be aware of confinement, or suffer some physical harm.
  • Size is not relevant.
  • Was there a reasonable means of escape?
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9
Q

Trespass to Land

A

Intent to enter the land of another.

  • Knowledge of trespass does not matter, only intent to enter the land.
  • Entering the land of no volition of his own removes prima facie case of intent.
  • Something tangible has to enter the land of another. (Light, sound, and odor are not trespass)
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10
Q

Trespass to Chattels

A

Intent to interfere with the possession of another’s chattel

Physical damage of chattel

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11
Q

Conversion

A

Intent to interfere with chattel of another

(More substantial interference than trespass to chattel.)

Permanent deprivation or major damage to chattel

REMEDY = FMV of chattel at the time of conversion

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12
Q

IIED

A

Intent to engage in extreme and outrageous conduct causing severe emotional distress.

  • Must exceed all bounds of decency tolerated by civil society.
  • Conduct is public, continuous, done by common carrier or innkeeper, or P is a fragile class of person, or if D is aware of a hypersensitivity and exploits it.
  • Physical manifestation of damages is not required

TIP: Only intentional tort where recklessness is sufficient for intent, and only tort where P has to prove damages.

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13
Q

Intentional Tort Defenses

A

Consent:

  • P must have had capacity to consent
  • Scope, and whether D has exceeded it

Self-Defense

  • Timing
  • Accuracy ( reasonable belief)
  • Appropriate Degree of force

Necessity
- Only available for property torts

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14
Q

Strict Liability

A

There must be either:

  • A wild animal (taming is irrelevant)
  • Abnormally dangerous activity
  • Defective product

P is seeking to establish liability regardless of any fault.

TIP: Ordinary negligence products liability cases against a retailer or wholesaler will generally fail on the MBE, because P can rarely prove D breached a duty.

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15
Q

Products Liability

A

ELEMENTS

  • A merchant
  • Defective product (manufacturing or design)
  • Defect must exist at the time product left D’s control
  • P made reasonably foreseeable use of the product
  • Plaintiff suffered physical or property damage\
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