MBE TORTS

Frequently Tested Topics

INTENTIONAL TORTS
5 elements of Intentional Torts- 1. Voluntary Act; 2. Intent; 3. Causation; 4. Harm; and 5. No Privilege or Defense
Torts Checklist: Who is the plaintiff?
Intent is either 1. Desire that your act will cause the intended consequences; or 2. Know that the outcome is
Who is the defendant/who are the
substantially certain to occur due to your acts
defendants? Who are the
Battery: where a defendant: 1. intentionally causes (intent- motive is irrelevant!); 2. a harmful or offensive contact
responsible parties? What is the
(any amount of discomfort); 3. to the plaintiff or something closely connected to the plaintiff (Does not require the
plaintiffs injury or injuries? What
plaintiff to be aware)
legal theory/theories can the plaintiff
Intent- desire the contact; knew contact was substantially likely to occur due to their action.
assert?
Transferred intent- still liable. Incompetent- still liable if you intended the conduct or knew its result
Battery defense- consent
Negligence
Assault- where the defendant: 1. intentionally places the plaintiff; 2. in reasonable apprehension (requires actual
General Elements: 1. Duty (Does
knowledge) of an 3. imminent battery (could be carried out almost immediately)
the law impose: a legal obligation
Assault intent- act with: purpose to create apprehension or know that: apprehension was substantially certain to
on the defendant to the plaintiff); 2.
occur. Transferred Intent still applies
Standard of Care: (measure of the
Remember- words alone are rarely enough; look for elements that negate intent (I would X, but); often paired
duty owed); 3. Breach of Duty: (the
with Batt
failure to meet the standard or
False Imprisonment- 1. defendant intentionally causes plaintiff 2. to be confined in a bounded area (confinementcare); 4. Cause in Fact (Connects
usually by threat or force; not applicable is P has reasonable way to escape; no time requirement) 3. Against the
the defendants: breach to the
plaintiffs consent and 4. plaintiff is aware of confinement or suffered harm due to it
plaintiffs injury); 5. Proximate Cause
FI intent- desire to confine or knows that: confinement was likely to occur due to their actions- Motive is irrelevant
(Are there still policy reasons to cut
False arrest- a false assertion of authority- apply same standard as false imprisonment- remember Shopkeeper
off liability even with the other
Exception
elements established?); 6.
IIED- the defendant with 1. Intent of recklessness 2. Engages in extreme and outrageous behavior (exceeds all
Damages (Plaintiff must prove
bounds tolerated by society) 3. That causes (watch out for basketcases) 4. P severe emotional distress (non-trivial,
damages to: recover for
need not be physical)
negligence); and 7. Defenses
IIED Mental State 1. Intent- desire to cause ED or knows that ED is substantially certain due to their actions 2.
Recklessness- defendant acts with conscious disregard for potential ED (broader standard). There is NO
transferred intent
Intentional Torts
Usually requires behavior that exceeds bounds of society- special exceptions certain callings (inn keeper, common
1. Voluntary Act; 2. Intent; 3.
carrier); defendant knows of plaintiffs vulnerability and exploits it; someone in power uses racial slurs on underlings
Causation; 4. Harm; and 5. No
Trespass to land- an 1. intentional act that causes (Intent) 2. something to enter land of plaintiff interfering with
Privilege or Defense
(Entry-must be tangible) 3. Plaintiffs possessory interest (Plaintiffs land-anyone with a property interest- owner,
tenant, adverse poss.)
Intent- desire to enter land or knew that entry onto land was substantially likely to result from their action-Mistake is
no defense
Remedies can be 1. legal (damages); 2. Restiutionary (prevent unjust enrichment/ ejectment); 3 Equitable
Mnemonics
(injunctions)
Damages- recover nominal damages; D is liable for full extent of damage causes; Remedy of ejectment (to kick D
off the land).
Trespass to Chattels: 1. Intent 2 to Interference 3. With Plaintiffs chattel/ personal property and 4. Causes harm
(cannot be trivial)
Intent is satisfied when defendant intentionally performs the physical act that interferes with plaintiffs chattel.
Defendant is liable even though: he may be reasonably mistaken
Conduct giving rise D uses, borrows without authorization or damages a chattel of another in a significant enough
way that we are willing to provide damages. (Usually allow remedy of replevin- get stuff back
My Strengths and Weakness
Conversion: defendant exercises 1. intentionally exercises (Intent same as conversion- mistake is no defense) 2.
dominion or control over the plaintiffs chattel or personal property representing 3. a substantial interference (more
severe than conversion)
Bona fide purchaser for value- If you buy stolen good you are screwed- still liable to original owner
Remedies: Typically forced sale converter required to pay fair market value of the chattel at the time it was
converted- Replevin too
Defenses and Privileges to Intentional Torts (POPCANS) Privilege; Others; Property; Consent; Authority;
Necessity; Self Defense
Consent- usually applies in Ass/Bat. If consent no recovery. Express: Words show willingness Implied: Actions show willingness
Limitation- cannot exceed reasonable consent. Standard- is what the defendant would reasonably believe
Mistake can vitiate consent when it goes to the consequence of the act. When to a collateral matter it does not wipe out consent
Self Defense- where a defendant honestly and reasonably believes that she used reasonable force to prevent plaintiff from engaging in an imminent and
unprivileged attack.
Use of force must be proportional (i.e. deadly cannot be used against non deadly) and must end when threat is over
Some jurisdictions require retreat before resorting to deadly force- exception- one never has to retreat from their home
Defense of Other- can defend another person from an attack by the plaintiff to the same extent: as self defense
Defense of Property- permitted to take reasonable steps to protect property.
Can use reasonable force only after asking person to leave; Can never be deadly force- look for escalation though
Recapture of chattels- can use non deadly force provided that 1. You request the item back, and 2. Defendant is in hot pursuit (i.e. running away with your
stuff)
Necessity- Permitted to injure anothers property if it is reasonably necessary to avoid great injury (greater good argument
Public Nec- Gov actor protecting public from harm. Could raise Fifth Amendment takings issues.
Private Nec. arises where defendant commits an intentional tort and it is: a better thing to commit personal tort than risk the other consequences. D will be
liable for any harm caused during the exercise of the privilege.
Authority- Arrests, Shopkeepers privilege, and Discipline
Arrest- 1. Felony: PO can arrest if they reasonable believe the person committed the felony; 2 Misdemeanor: PO can arrest only for a breach of the peace; 3.
Private individual act at their own peril. If they are wrong: they are liable
Shopkeepers Privilege- D not liable for FI/ related tort if they have reasonable suspicion that P has stolen goods, uses reasonable force to detain the person,
and detains plaintiff for a reasonable period and in a reasonable manner, on the premises or in the immediate vicinity.
Discipline If D is charged with maintaining discipline (parent or teacher), he may use: reasonable force to discipline children

MBE TORTS

NEGLIGENCE
Duty-When a defendant is engaged in affirmative, risk creating conduct causing injury or property damage: a duty is owed to a foreseeable plaintiff (palsgraf
case)
Traditional rule- no duty to rescue. Nonfeasance: failure to act is OK. Exceptions 1. Defendants tortious conduct: creates the need for rescue; 2. Undertaking
to act of rescue (must be in good care); 3. Created reliance; special relationship
Misfeasance: affirmative risk creating conduct (i.e. shooting off a gun downtown) or Negligent omission
Duty to control 3rd party- generally not responsible unless special relationship dictates otherwise
Servers of Alcohol Traditionally no liability. Dram Shop can be liable to third parties for serving visibly intoxicated
No duty to protect from 3rd party criminal acts- some special relationships. Usually requires prior similar incidents
Government Entity- Proprietary function- acting as private actors treated like other people; discretionary function making discretionary judgment and
allocations court unlikely to find liability; Ministerial function- once gov decides how to act ct will hold them liable if they mess up. Public Duty doctrine cannot
be sued for failing to respond unless special relationship or the gov caused increased danger
NIED (Direct) Defendant engages in negligent conduct and as a result, the plaintiff suffers: emotional distress and maybe some physical manifestation. Must
be in the danger zone (near miss) exception for false notice of death or mishandling by funeral home
NIED (Indirect) Bystander Actions: The physical harm occurs: to a loved one and plaintiff is near (in the danger zone)
Wrongful Conception (i.e broken condom), Wrongful Birth (i.e. Dr failed to diagnose, would have aborted) , Wrongful Life
Land Possessor Liability: 1. Invitee there for econ benefit or public use;duty to exercise reasonable care to prevent injuries to invitees caused by activities
conducted on his land. 2. Licensee there with possessors permission must warn licensees of: known concealed (non obv) dangers; 3. Trespasser Only
obligation on the land possessor is: avoid the infliction of willful and wanton ham. REMEMBER- Persons status can change
Child Trespassers (Attractive Nuisance Doctrine)- 5 Factors 1. Too young to know risk 2. Foreseeable children will trespass ; 3. Defs Knowledge of dangerous
condition; 4 artificial condition; 5. Risk outweigh the utility to the Def
Plaintiffs not on the land (but adjacent to it) 1. Artificial condition on the land: Duty of: reasonable care; 2. Natural condition on the land: No duty unless: its a
tree in an urban area
Landlords and Tenants- LL not liable unless: 1 common area; 2. Neg repairs; 3. Known dangerous defect; 4. Property going to be held up to the public at
large
Standard of Care
Reasonably Prudent Person Under the Same or Similar CircumstancesObjective standard of care: Look at defendants conduct and measure it against: the
standard of a reasonably prudent person- Take into acct phys condition (i.e. blindness) and emergencies not of their making. Do not consider personal
shortcomings/ mental ability
Analysis of the breach is: Failure to act as a reasonably prudent person: in same or similar circumstances: 1. What is the: unreasonable conduct and whats
the probability of harm; 2. What is the: likely injury based on the action; 3. What is the: burden for defendant to act differently
Showing violation of custom/ industry practice can help show violation of standard of care/ a breach
Children- Part subjective (individual factors like age, exp, and smarts) and Part objective (compare to other similar children)
Children exception- held to normal standard if 1. Engaged in adult activity or 2. Inherently dangerous activity
Statutory- A statute that provides for civil liability supersedes the common law of torts.
Neg per se- Where defendants conduct also violates: criminal statute/ legislative ordinance. Usually means breach if it applies
Neg Per Se applies if 1. plaintiff is a: class the statute was designed to protect or 2. the injury caused by defendants conduct is: what the statute was designed
to protect from. When not applicable use reasonable person standard
Professionals- For lawyers, doctors, accountants and architects, courts will defer to the profession: the customary practice becomes the standard of care. If
you comply you are safe
Medical Malpractice: Doctors are required to possess and use the knowledge, skill and training of: other doctors in good standing in the same geographic
community (If specialist there is a national scope)
Lack of Informed consent- Split of Authority 1. Professional Rule Traditionally, doctors must divulge those risks that are customarily divulged. Or 2. Standard of
materiality (Patient Rule):Requires physicians to divulge all material risks
Breach of Duty
Slip-and-fall cases- must show that D was: negligent for failing to discover and failing to remedy the dangerous condition
Res ipsa loquitur (the thing speaks for itself) Arises when you cannot identify what the defendant did that was wrong but the situation smells of negligence
To prove Res Ipsa Loquiter, Plaintiff needs to show: 1. when this happens its typically due to negligence; 2. Defendant is: the responsible party (has control);
and 3. Plaintiff did not contribute to the injuryGets issue to the jury. Not auto win
Cause-in-fact (Actual Cause) - ties the defendants breach of duty to the plaintiffs injury. Plaintiff only has to show: more likely than not, but for the defendants
conduct, the plaintiff would be injured
Multiple Defendants- Substantial factor test: Was the negligence of the defendant at issue: a substantial factor in the plaintiffs injury
MDs- Must use where: either defendant alone would have brought about the harm; Assume joint and several liability: Plaintiff can sue one or both defendants
and collect: from whichever party they choice to sue (other party can sue for co def for contribution)
Loss of Chance (i.e. missed diagnoses causes 40% chance to recover to go to 0); damages reduced; however still compensatory
Alternative Liability theory (2 people negligent shot guns, cannot tell who injured plaintiff). MOST TESTED
Alt Liability Factors- 1. small number of defendants; 2. each of whom is negligent; and 3. all have been sued (before the court)
If Alt Liability is proven by Plaintiff, Burden shifts to defendant to show that they were not the cause. If a defendant cannot do so, then they will be jointly and
severally liable.
Market share liability: Generic product, produced by multiple Ds- unsure who caused injury. All our negligent. Each is on hook for their share of the market.
Court uses several liability
Proximate (Legal) Cause
Unforeseeable extent of harm: It doesnt matter that the plaintiff has suffered more harm than one would foresee. Defendant is responsible for: the full extent
of the harm that she caused (Recall Egg Shell Skull Rule)
Unforeseeable type of harm- Use a rule of foreseeability or the risk rule: Look at what makes the defendants conduct unreasonable and then ask if the injury
suffered by the plaintiff is: the type of harm that is foreseeable by that type of conduct
Unforeseeable manner of harm (most tested) Superseding Cause is an unforeseeable, intervening cause that breaks the chain of causation between the initial
wrongful act and the ultimate injury, and thus: cuts off defendants liability.
Note that Subsequent negligent conduct is generally not so unforeseeable that it cuts off liability
Damages
There must be a cognizable injury. Nominal damages are: not allowed
Compensatory damages- Designed to return the plaintiff to: her pre-injury position (money to compensate for injury)
Three rules: for Comp Dam: 1. Must be foreseeable- type not extent; 2.Reasonably certain; and 3.Compensatory damages are not unavoidable

MBE TORTS
Two categories of compensatory damages available 1. Special 2. General
Special damages: Tangible, pecuniary such as medical expenses, lost wages, cost of repairing a car etc. Can recover for past, present and future damages.
Future damages are reduced to present value.
General damages: More controversial because: they are more intangible (i.e. pain and suffering)
Punitive Damages Requires greater culpability than negligence.- Willful, Wanton, Malicious Reckless. Goal is to deter future behavior
Defenses to Negligence- Contributory Negligence, Comparative Fault, Assumption of the risk
Under contributory negligence: any fault on behalf of the plaintiff is a bar to recovery (even 1%)
Comparative fault reduces the plaintiffs recovery.
Pure comparative fault: the plaintiff is allowed to recover no matter how at fault they are- subtract the % of fault from the recovery
Plaintiff is allowed to recover (i.e. if 40% neg you get 60% of the winning)
Modified comparative fault: If plaintiff is as much or more at fault, then the plaintiff is: no recovery
For MBE Assume: Pure comparative fault jurisdiction were pure joint and several liability applies
Assumption of Risk- Express: Plaintiffs written or oral words relieves the defendant of their responsibility to be non-negligent towards the plaintiff. Typically:
only applies to negligence- Void against public policy when dealing with a necessity. (i.e. hospital)
Implied Assumption- Bars P recovery if D can establish1. plaintiff had: knowledge of the risk; 2. plaintiff appreciated: and understood the risk; and 3. plaintiff
voluntarily chose: to confront the risk
Professional rescuers (Firefighter Rule): no right to sue person they are rescuing even if they were negligent in causing situation that necessitated need for
rescue But good deed doers are owed an independent duty of care
Primary assumption of the risk: a defendant has no obligation to act non-negligently towards the plaintiff. There is no duty owed.
Avoidable consequences: P has obligation to: take reasonable steps after they have been injured not to increase their injuries
STRICT LIABILITY AND PRODUCTS LIABILITY
Strict Liability- auto liability regardless of level of care
Possession of animals- different standard for wild vs. domestic.
Wild Animals- if P is injured because the animal does something characteristic of that animal, the keeper is: strictly liable
Domestic- the keeper of a domesticated pet is not liable unless the keeper: knows or should know of the animals dangerous propensity (One bite rule)- Statute
may create stricter liability
Abnormally dangerous activities- high risk of harm, uncommon activity
Plaintiff can recover when absent proof of fault as long as the defendant was involved in an abnormally dangerous activity and that the activity caused the
harm
Proximate cause issue :Plaintiff has to be injured by: a risk that makes the activity abnormally dangerous. If injured by other risk P will have to prove fault
Defenses- Assumption of the risk is the major defense. Usually contributory negligence does not apply.
Products Liability- Multiple tots including strict products liability, negligence, and breach of warranty
Strict Products Liability- focus is on the product itself. There are 8 elements
1. Proper plaintiff- is a user, consumer or bystander injured while using a defective product may recover damages
2. Proper Defendant (often tested) Commercial suppliers at all levels of the distribution chain and those in the market of selling the product are: proper
defendants (i.e. manufacturer, wholesaler, retailer ) Not occasional sellers
3. Proper Context for Strict Products Liability- Generally, providers of services are: not strictly liableWhen there is both a service and a product: If defective
goods are supplied along with services, strict liability only if product sales predominate over service
4. Defects- 3 kinds Manufacturing, Design, absence of warning
Manufacturing Defect - A product manufactured in a form: not intended by the manufacturer. P must show product is more dangerous than a consumer would
reasonably expect; or in a condition not intended by the manufacturer and the defect existed at the time it left the defendants hands.
Design defects- A product manufactured as the manufacturer intended but that: there is a problem with the design itself, look to ordinary consumer expectation
test (more dangerous than contemplated) and risk-utility balancing test (its benefit to society outweighed by harm balanced against the availability, feasibility,
and impact of alternative designs. Vaccines and Rx Drugs exempt
Absence of Warnings: 1. Inadequate warning- does not inform of dangers/ posting issues; or 2 Missing Warning (if known risk)
5. Cause-in-Fact-Injury is attributable to Def i proven by showing that the defect that injured plaintiff was: caused by the product
6. Proximate Cause- Look for proximate cause- I.e. Learned Intermediary- Dr knows risks of med and fails to warn
7. Damages- recover when: there is personal injury or damage to property (for defective product- only claim Breach of War.)
8. Defenses: 1. Misuse (use product in non-intended/ unforeseeable way); 2. Alterations; and 3. Assumption of the Risk
Negligence Theory- foreseeable P, look to reasonableness, res ipsa thats place of manufac. Defect , negligent defenses apply
Warranty Theory- Express or Implied Warranty
Express- Def makes a specific representation as to the quality of an item that becomes the basis of the bargain (in ads, nego, Ks)
Implied warranty- Warranty of Merchantability (ave quality of good of that kind); privity reqs can be disclaimed
NUISANCE
2 kinds Public and Private
Public Nuisance- is an unreasonable interference with the health, safety, morals of the community. Usually brought by Gov. Actor
To recover damages in an individual action for a public nuisance: he must have a unique individual harm
Private Nuisance- is a thing/activity that: is substantial or unreasonable interference with the use or enjoyment of land. Intentional
5 factors: 1. The value of Defs activity; 2. Alternatives; 3. Nature of the locality; 4. Extent of the injury; and 5. Who was there first
Remedies- Injunction requires: irreparable harm and damages are an inadequate remedy. Equitable relief based on balancing
DEFAMATION AND INVASION OF PRIVACY
Defamation
For a defamation action plaintiff must establish that defendant: engaged in false, reputation harming speech- 6 requirements
1. Defamatory message- subjects plaintiff to scorn or ridicule or deter others from dealing with plaintiff (reputational harm).
must be one which can be believed to be truthful and reputation-harming. Must be defamatory in eyes of reasonable group
2. Pleading Problems- If not named, P has to prove it applies to them; large group cannot be defamed- small group can and each member of small group has
a claim; Statement need not be defamatory on its face (X is marrying Y, but he is already married)
3. Publication- someone other than the plaintiff read, saw, or heard the defamation
Plaintiff must show: defendants negligently or intentionally published the defamatory material- republishers are liable
4. Types of defamation and damages: Libel- originally written; now a defamatory message in any relatively permanent form
Slander- originally oral; now any form of non-permanent defamation. Usually requires proof of special dam, unless per se
Slander per se- so harmful damage presumed if relates to; character required for profession, 2. Imputes in a crime involving moral turpitude; 3. allegation of
loathsome disease; 4 about lack of chastity/ sexual misconduct
5. Common law Privileges- Truth, Absolute Privilege, Qualified privilege

MBE TORTS
Truth- falsity was once presumed, now P must prove it in Prima Facie case (except possibly private P and private concern)
Absolute Privilege- not liable as matter of law 1.spouses; 2. legislative floor; between high ranking officials; judicial proceeding
Absolute Privilege ends if someone repeats the defamatory statement in a non-privileged situation.
Qualified Privilege- Def loses an otherwise available qualified privilege if: 1 they have bad intent; 2.He does not believe the truth of the defamatory
communication; and 3 reckless as to truth or falsity. Gives greater leeway to speech.
6. Constitutional Issues- Pre 1964 no First Amendment protections. After 64 NY Times v. Sullivan 4 questions
(1) What is the: status of the plaintiff?; (2) What is the: subject matter? Public of Private concern; (3) What: dames does the plaintiff speak; (4) What is the:
status of the defendant
Public official: If def related to capacity as public official, must prove: clear and convincing evidence of actual malice. Show D knew information was false or:
recklessly disregarded truth or falsity.
Public figure treated the same as PubOff. Limited public figures- only relevant in the context they are public
Private figure: look to subject matter- is it of public or private concern. Consider form, content and context.
Public concern: reputation harm- Most states use negligence.; Presumed or punitive damages: clear and convincing actual malice
Private concern: Plaintiff does not have to prove: actual malice
Invasion of Privacy
Intrusion into Seclusion- Def intentionally interferes (offensive to reas. Person) with plaintiffs sphere of privacy. Publication not reqd.
Commercial Appropriation of Identity or Likeness: wrongful use of Ps identity or likeness for a comm. purpose; not newsworthy
Public Disclosure of Private True Facts- P must prove 4 elements- 1. Disclosure; 2. Private facts; 3. Highly offensive to a reasonable person; and 4. Not
newsworthy. Must be published .
Portrayal in a False Light- P must show 1. Publication; 2. of false information; 3. divulging the info is highly offensive to a reasonable person; 4. some level of
fault
Wrongful Institution of Legal Proceedings
Malicious Prosecution- criminal proceedings are instituted by defendant, done for an improper purpose and without prob cause Wrongful Institution of Civil
Proceedings- Similar to malicious prosecution: just civil instead- improper motive, no basis to do so
Abuse of process- where defendant intentionally misuses a judicial process (whether civil or criminal) for a purpose other than that for which the process is
intended. This tort also parallels malicious prosecution.
ECONOMIC TORTS
Intentional Misrep. (Fraud)- 1. intentional, material misrepresentation; 2. of past or present fact; 3. made with scienter; 4. on which plaintiff justifiably relies.
Generally an affirmative assertion of fact or an act of concealment. Failure to disclose information is not a basis unless special circumstances
Neg. Misrep- defendant has no duty to avoid the negligent affliction of pure economic loss. Exception- special relationships- like lawyers/ accountants. Usually
must have privity of K to recover unless goal is to rep third party and they rely on it; or wills
Interference with Contractual Relations 1. Def. knows that there is: a contract between plaintiff and 3rd party; and 2. Def acts with the purpose: to have that
contract breached or make it harder to complete
Interference with Prospective Economic Advantage D: 1. Knew of: the prospective economic advantage and 2. Acted to: interfere with it for improper motives
Injurious Falsehood (Trade Disparagement) 1 false statement; 2. Actual malice or that the defendant knew the statement was false or recklessly disregarded
truth or falsity; 3. made to another or published; and 4. Causing specific economic injury to the plaintiff
OTHER TORT CONCEPTS
Vicarious Liability
Respondeat superior- An employer is liable for injuries caused by the neg or strict liability of an employee if act: within the scope of employment (cannot be a
frolic or detour). Usually not liable for int. torts unless ee thought they were doing it for ers benefit
Independent Contractor- Employer not liable- however look to who dictates the means, method and manner. Level of control
Parents- not vicariously liable for tort committed by their child. Can be held negligent/ liable for int torts.
Abatement/Survival of Action and Wrongful Death
Survival Statutes: The death of the victim or tortfeasor no longer abates the tort action and the claim: continues with the estate
Wrongful Death Statutes: allows heirs to bring suit for the injuries they suffered due to the death and for loss on companionship
Loss of Consortium: Where a spouse is killed, the surviving spouse may bring a claim for loss of consortium; sex, companionship