Torts - Set 1

Express Assumption of Risk in a Disclaimer Clause

An express assumption of risk in a disclaimer clause is valid only if three criteria are met: 1. The plaintiff is aware of its terms; 2. the injury which occurs is within the risks of which the plaintiff agreed to relieve the defendant; 3. the disclaimer is not contrary to public policy.

Strict Liability - Abnormally Dangerous Activities

landowners are strictly liable for injuries to property on adjacent lands caused by abnormally dangerous activities conducted on their property. Land occupiers are not strictly liable for acts on their premises except when the land occupiers are engaged in an abnormally dangerous activity like blasting or nuclear waste storage.

Negligence - Defendant Must Cause Injury to be Liable

In addition to being a cause-in-fact of plaintiff's harm, the defendant's conduct must also be a proximate, or legal, cause of the injury in order for the defendant to be found liable for negligence.

Attractive Nuisance Doctrine

"According to the attractive nuisance doctrine, a landowner owes a duty to foreseeably trespassing children when he knows or reasonably should know of an unreasonably dangerous artificial condition on his property. The landlord's liability arises when he has knowledge or is put on notice of the dangerous condition. He has no duty to inspect his land to find conditions of which he is unaware."

Battery

A battery is an intentional act that causes a harmful or offensive contact with the plaintiff or any item connected to the plaintiff. An actual touching of the person is not required.

Trespass to Land Lack of Knowledge is No Defense

An intentional entry onto land is a trespass, even if the defendant does not realize he has crossed a boundary line or has a good-faith belief that his entry is lawful. Mistake as to ownership is not a defense to trespass.

Standard of Care - Reasonable Child vs Child Engaged in an Adult Activity

Applicable standard of care considers what a reasonable child of the same age, knowledge, intelligence, and experience would have done under the circumstances. A child engaged in an adult activity, will be held to the tougher objective standard of what a reasonable person would have done under the circumstances with no allowance for limited maturity.

Negligence - Breach in Duty of Care Foreseeable Plaintiff

Duty of reasonable care owed to foreseeable plaintiff subject to an unreasonable risk of harm.

Negligence Standard

Duty of reasonable care owed to plaintiff.

Duty of Care - Foreseeable that Children will Trespass

Duty of reasonable care owed when it was foreseeable that children will trespass, and that there was an unreasonable risk of harm. Child trespassers are owed a higher duty of care because of children's inability, due to their immaturity, to recognize conditions that are likely to cause them injury.

Public Nuisance - Who May Bring An Action

For a public nuisance to exist, there must be an unreasonable interference with the health, safety, or property rights of the community at large. It is not required that the entire community be affected by the nuisance, but merely those who come in contact with it in the exercise of a public right. Side note: A private plaintiff can maintain a public nuisance action, just as a public official may be the proper plaintiff to seek abatement of a public nuisance (e.g. if it affects the community as a whole the city attorney may file a lawsuit.) Some cases have held: In order to maintain a proceeding to enjoin or to abate a public nuisance, one must: (a) have the right to recover damages, as indicated in Subsection (1), or (b) have authority as a public official or public agency to represent the state or political subdivision in the matter, or (c) have standing to sue as a representative of the general public, as a citizen in a citizen's action or as a member of a class in a class action.

Transferred Intent - From One Tort to Another

Generally, if a defendant intends to commit assault, battery, false imprisonment, trespass to land or to chattels, and inadvertently commits a different one of these other torts, his intent will "transfer" to support the tort appropriate for the result achieved (e.g. reasonable apprehension of an imminent harmful contact is sufficient intent to support liability for assault; but if harmful contact is achieved, then the intent is transferred to a battery.) **Note, that in this context, transfer of intent is in tort.**

Special Duty to Child Trespassers - Artificial Conditions Foreseeable That Children Will Trespass

If a defendant knows or has reason to know children are likely to trespass where conditions on his premises are dangerous, he will owe the trespassing children a duty of reasonable care. If he fails in that duty and a child is injured, he would be liable and the child could recover. Other factors to examine are whether children, relative to their age, could recognize or appreciate the danger, and whether the burden of correcting the danger was small in relation to the risk to the children. Note: ** (This is not an) Attractive Nuisance Problem** It is not necessary for the "special duty to child trespassers" to arise that an injuring condition "attract" a child onto private property. Therefore (for example) a landowner will be liable even if a child comes onto the land for a reason entirely unrelated to the presence of any dangerous condition like trying to catch a ball.

Vicarious Liability - Independent Contractors Indemnity from the Actions of Another Allows Co-Tortfeasor to Shift Loss to Negligent Actor

Principals are not held vicariously liable for the torts of independent contractors (unless held otherwise by a court). If "judgment against" a party is based upon her derivative liability for another's negligence rather than the party's own negligence in contracting with another, then the party is entitled to indemnity from the injuring party. This allows the innocent plaintiff to be assured recovery, but the indemnifying party as a co-tortfeasor, who was not negligent in her own conduct, could shift the loss to the negligent party.

Standard of Care - Physician

The critical issue in a medical malpractice action is whether the doctor has breached the standard of care to which doctors are held. Doctors are expected to have the knowledge, skill, and judgment ordinarily possessed and employed by members of the profession in good standing.

Defense of Privilege

The defense of privilege may be used to shield a defendant from liability if some important personal or public interest will be protected by the defendant's otherwise prohibited conduct and this interest justifies the harm caused or threatened (e.g. The interest of saving a human life justifies such a threat.)

Liability for Negligence Under the Doctrine of Res Ipsa Loquitur

The doctrine of res ipsa loquitur applies if a plaintiff establishes that: 1) the incident that caused the plaintiff's injury would not normally occur in the absence of negligence; 2) the instrumentality which caused the accident was in the sole control of the defendant; and 3) the plaintiff did not cause the injury. If the plaintiff establishes these three elements, then the jury is permitted (but not required) to infer that the plaintiff's injuries were caused by the defendant's negligence.

Interference with Economic Relations - Contract Probably "Expectancy" Interests

The tort of interference with prospective advantage protects the probable "expectancy" interests of future contractual relations of a party, such as the prospect of obtaining employment or the opportunity to obtain customers. Modern decisions have expanded this tort action to protect such non-commercial expectancies as interference with an expected gift or legacy under a will.

Public Disclosure of Private Facts

The tort of public disclosure of private facts requires: 1. that the defendant reveal true facts about the plaintiff, the disclosure of which would be objectionable to a reasonable person; and 2. the facts must be of a private nature, not newsworthy. However, unlike defamation: 3. public disclosure of private facts requires a widespread publication of the facts.

Transferred Intent - Applicable Tort

The transfer of intent only applies to the torts of battery, assault, false imprisonment, trespass to land or to chattels.

Interference with Economic Relations - Contract

To be held liable for interference with a contract, the defendant must be shown to have caused the interference. It is not enough that he merely has reaped the advantages of the broken contract after the contracting party has withdrawn from it. Virtually any type of contract may be the basis for this type of tort action. However, the contract must (a) be in force and effect; (b) be legal; and (c) not be opposed to public policy.

Negligence - When Liable

To be liable for negligence all elements in the chain must be complete; duty, breach, causation - then a defendant will be liable for damages unless some other factor presents to negate liability.

Defamation - Public Figure

To recover for defamation, where a plaintiff is a public official or a public figure, the plaintiff must establish that defendant acted with "malice" (knowledge of falsity or reckless disregard for the truth), a higher standard than for other plaintiffs.

Sovereign Immunity vs Customary Negligence

Under the doctrine of sovereign immunity, an individual could not sue a government in tort unless that government first consented to be sued. The tort liability of the federal, state, and municipal governments is largely regulated by statute. If a government actor commits a tortious act and there is no statutory provision noted, his act will be viewed under a customary negligence analysis, and the fact that he is an agent of government will not insulate him or his agency from liability.

Recovery of Damages - Consideration of Contributory, Comparative, and Reckless Negligence, and the Last Clear Chance Doctrine Jurisdictional Considerations: Contributory Negligence = Bars Recovery Unless Last Clear Chance or Recklessly Negligent Defendant Comparative Negligence = Apportions Fault as Follows: 1.. Comparative = Equal Fault May Allow 50% Recovery 2. Pure = Only Liable for Percentage of Fault (great or small) 3. Modified = 51% Rule (Greater Fault Bars Recovery) 4. Modified = 50% Rule (Equal Fault Bars Recovery)

Unless a jurisdiction has adopted any form of comparative negligence, an injured's purported contributory negligence would bar his recovery unless he can argue: 1. the defendant had a "last clear chance" to avoid the injury to him, or 2. regardless of whether there was a last clear chance, that the defendant was recklessly negligent Contributory negligence is not a defense to a defendant's reckless negligence. The last clear chance doctrine applies when a contributorily negligent plaintiff in helpless peril would not have been injured "but for" the defendant's final act of negligence in failing to avoid harm. Exam Tip: The doctrine, however, is ONLY applicable in contributory negligence jurisdictions and on the MBE you are to assume the jurisdiction follows pure comparative negligence unless told otherwise by the question.

Contributory Negligence

When a plaintiff is injured in an accident, plaintiff has an obligation to mitigate his damages. This includes taking all reasonable steps to limit the adverse consequences of the accident. If the plaintiff does not act as a reasonable person in limiting his injuries, his recovery against the individual causing the incident will not include damages for those consequences that could have been avoided.

Battery

A battery is an intentional act that causes a harmful or offensive contact with the plaintiff or with something closely connected thereto. It need not be direct contact with the plaintiff's body -- offensively touching anything close to or connected to the plaintiff's body is enough.

Standard of Care - Child Engaged in Adult Activity

A child is generally judged by a standard comparing him to a reasonable child of the same age, experience, mental abilities, etc. Some states established a minimum age (such as seven) below which it was held that no negligence was possible, and would rebuttably presume that a child between that minimum and some later age (such as between seven and fourteen) was also not capable of negligence. However, where the child is the wrongdoing defendant and was engaged in an activity normally conducted only by adults, such as operating a motor vehicle, most states now judge the child by adult standards, reasoning that the innocent plaintiff should not suffer because of the age-related incapacities of the tortfeasor.

Defamation - Third Party

A defamatory message published about a third person is actionable only to the extent that it also defames the plaintiff. A defamatory message concerning only a third person, even one closely related to plaintiff, cannot defame the plaintiff.

Strict Liability - Wild Animal Contributory Negligence is Generally No Defense

A defendant can be held strictly liable for personal injuries inflicted by his animal if it has "known dangerous propensities." For purposes of strict liability, a wild animal is considered to have "known dangerous propensities," even if the animal has never before demonstrated any tendency to harm human beings. Where strict liability applies, a defendant generally may not raise the plaintiff's contributory negligence as a defense.

Strict Liability - Wild Animal

A defendant can be strictly liable for personal injuries inflicted by his animal if it has known dangerous propensities. The classic example of a domestic animal with known dangerous propensities is a dog that has previously bitten someone.

Duty of Care Owed to Rescuer

A defendant is liable to a rescuer if the defendant negligently puts himself in peril and the rescuer is injured while attempting to rescue him, as long as the rescue is not reckless. If a defendant is negligent in placing himself at peril he is deemed to owe a duty of care to anyone who may attempt to rescue him.

Strict Liability - Product Defect Shifting Liability from Manufacturer to an Intermediate Handler because of Negligence

A defendant manufacturer will be relieved of strict products liability if an intermediate handler of the product discovers the defect and knowingly passes it on in the stream of commerce to the plaintiff, having taken no action to prevent the plaintiff's injury. The intermediate handler's wrongdoing shifts the responsibility to itself from the defendant. An entity placing final finished products in the stream of commerce, must exercise due care with those products or will subject itself to liability for any dangerous defects which it negligently passes on to the consumer or user.

Strict Liability - Abnormally Dangerous (Ultra-Hazardous) Activity

A defendant may be held strictly liable for injuries caused when he is engaged in an abnormally dangerous activity. A judge determines whether an activity is abnormally dangerous by considering: 1. whether the activity creates a risk of serious injury as to plaintiff, his land, or his chattels; 2. whether the risk can be eliminated by the exercise of due care; and 3. whether the activity is not usually conducted in that area. Example: Dynamiting, crop-dusting, and exterminating have been found abnormally dangerous. For strict liability to apply, the harm to the plaintiff must have resulted from the type of danger that justified classifying the activity as dangerous.

Res Ipsa Loquitur

A defendant will be considered negligent under the doctrine of res ipsa loquitur if it is established that (1) the event that caused the plaintiff's injury was one that would not ordinarily occur in the absence of negligence; (2) it is more likely than not that it was the defendant's negligence that was responsible for the injury-causing event; and (3) the plaintiff was not responsible for the event that caused the injury. Note, that the doctrine of res ipsa loquitur is typically used by desperate plaintiffs who don't know what happened.

Co-Tortfeasors - Jointly and Severally Liable

A defendant's conduct is the cause-in-fact of a plaintiff's injury if that conduct was a substantial factor in causing the injury. If the injury suffered by the plaintiff was caused by more than one defendant, their liability is indivisible, and each will be jointly and severally liable.

Guest Statute

A guest statute requires a plaintiff passenger to demonstrate that his driver (pilot, in this case) was grossly or wantonly negligent for a passenger to recover from him.

Strict Liability - Abnormally Dangerous (Ultra-Hazardous) Activity

A judge will engage in an analysis of the following factors to determine if an activity is abnormally dangerous and determine that the activity is indeed abnormally dangerous if: the activity creates a risk of serious injury as to plaintiff, his land, or his chattels; this risk cannot be eliminated by the exercise of due care; and the activity is not usually conducted in that area. Such things as dynamiting, crop-dusting, and exterminating have been found to be abnormally dangerous.

Special Duty to Child Trespassers - Artificial Conditions: Foreseeable Risk of Unreasonable Danger

A land occupier owes a duty of reasonable care to trespassing children with regard to artificial conditions on his premises if the following criteria are satisfied: 1. the land occupier must know or have reason to know that children are likely to trespass; 2. the land occupier must know or have reason to know that conditions on his property pose a serious risk of injury to children; 3. the children, because of their immaturity, must be unable to recognize or appreciate the risk; and 4. the burden to eliminate the risk must be small compared to the risk to the children."

Duty of Care Owed to an Invitee

A land occupier owes an invitee a duty of reasonable care, including inspecting for conditions which may pose unreasonable risks of harm to a person coming on the premises for the benefit of the land occupier.

Negligence and the Reasonable Person Standard

A person can be liable for negligence if their actions result in injury in an emergency situation if, given the situation, they failed to act as a reasonable person. If the rescuer behaved as a reasonable person in the emergency, he would still be liable if his initial acts were negligent, and those acts precipitated the event that placed the injured in peril. Note, that this could be a red herring. This concept of negligence in an emergency situation is not the same concept as a negligent rescuer.

Assault

A person commits tortious assault if he acts intending to cause a harmful or offensive contact or an imminent apprehension of such a contact and the other person is put in imminent apprehension.

Duty of Care Owed to Foreseeable Plaintiff

A person owes a duty of reasonable care to mitigate/minimize risk of injury to persons when there is a known risk or a risk can be reasonably anticipated.

Duty of Care Owed to Foreseeable Plaintiff Proximate Cause - When a Foreseeable Intervening Force Does Not Supersede a Defendant's Negligence Foreseeable Intervening Cause = Liable

A person owes a duty of reasonable care to mitigate/minimize risk of injury to persons when there is a known risk or a risk can be reasonably anticipated. Example: Homeowner's large Bamboo branches obstructs view of corner stop sign. A motorist is severely injured when proceeding into an intersection and struck by another vehicle. He was unaware of the stop sign given it's view was obstructed. The homeowner's failure to trim the bamboo was a "cause in fact" of the motorist's injuries. In addition, it was certainly foreseeable to the homeowner that a driver proceeding in traffic might fail to stop at the street, because a traffic accident is a natural result of an obscured traffic sign. The motorist entering the intersection without stopping was therefore a foreseeable intervening force which does not supersede the homeowner's negligence and renders it a proximate cause of the collision which injured the motorist. Note: To be superseding it must be shown that the action was unforeseeable. However, intervening negligence is generally deemed to be foreseeable. Proximate Cause and Foreseeable Intervening Force: - Driving thru Stop Sign Unaware Actual Cause: - Defendant Failed to Mitigate Known Risk

Strict Liability - Product Defect Misuse - Defense to Claim of Products Liability

A person who assembles component parts into a finished product is strictly liable for defects in the components used. The manufacturer of the component part is also strictly liable for defects in the component. Note: However, A company that assembles component parts may be indemnified if it can show it exercised reasonable care (e.g. provided information with packaging on product to warn of dangers and user ignored or was negligent in its use). Misuse is a defense to a claim of products liability. If a plaintiff uses a product in a manner that is neither intended nor foreseeable, she has misused the product and it cannot be defective.

Duty of Reasonable Care Breached

A person will be liable in tort if their actions constitute a breach in their duty of care.

Poindexter Rule of How Much Care to Exercise

A person with superior skill and expertise will be held to the standard of a reasonably prudent person with that superior skill and special expertise, not merely the standard of a reasonably prudent person.

Res Ipsa Loquitur (The Thing Speaks for Itself)

A plaintiff may often be unable to offer affirmative proof that the defendant was negligent because the circumstances prevented the plaintiff from learning exactly what the defendant did to set the forces in motion which injured him. The doctrine of res ipsa loquitur was developed to meet this situation. If the plaintiff can establish: 1. that the event which caused his injury would not ordinarily occur in the absence of someone's negligence, 2. that it is more likely than not that the defendant's negligence was responsible for the injury-causing event, and 3. that the plaintiff was not responsible for the injury-causing event, the law infers that the defendant was negligent and that such negligence caused the plaintiff's injuries.

Private Nuisance

A private nuisance is a thing or activity that substantially and unreasonably interferes with plaintiff's use and enjoyment of his land. The nuisance must be: 1. offensive, 2. inconvenient, or 3. annoying to an average person in the community.

Strict Liability - Defective Product

A product may be considered dangerously defective when it is accompanied by an inadequate warning. It may fail to sufficiently describe the danger, fails to mention all dangers, or is inconsistent with the instructions for use of the product. Where plaintiff establishes that the manufacturer of a product knew or reasonably should have known of a danger presented by the product and failed to take the precautions a reasonable person would have taken to warn adequately of that danger, the absence of such warning is sufficient to impose strict liability.

Affirmative Duty to Protect - Special Relationships

A special relationship between defendant and plaintiff takes place when the defendant derives economic benefit or when the defendant occupies a position of power over the plaintiff. The following relationships have been generally recognized as triggering the duty to care for the plaintiff: 1. employer/employee (during and in the scope of employment); 2. common carrier and innkeeper/customer; 3. school/pupil; 4. parent/child; and 5. jailer/prisoner.

Trespass to Chattel

A trespass to a chattel may be committed by intentionally dispossessing another of the chattel or by using or intermeddling with a chattel in the possession of another. A plaintiff must generally prove damages in the actual amount caused by the tortious conduct, or in the case of dispossession, by the loss of use.

Negligence Action Against Multiple Tortfeasors Jointly and Severally Liable Plaintiff Recovers Full Damages (In Aggregate) Burden of Proof on Each Defendant to Establish Fault

An action against one actor for negligence does not negate liability of other responsible tortfeasors because any injury suffered by the plaintiff is indivisible, so all the defendants will be jointly and severally liable for the full amount of his damages. In the majority of jurisdictions, even where comparative negligence has been adopted, any reallocation of the damages between the defendants will be their burden. This ensures that the plaintiff gets one full recovery.

Negligence - Not Liable (No Finding of Fault) Reasonable Person Standard

An alleged defendant cannot be held liable for negligence without fault. If a person unknowingly violates a law and causes an injury that would otherwise fall under negligence principles, he will be judged by what reasonable person under the same or similar circumstances would have done in the situation.

Negligence - Not Liable (No Finding of Fault) Use of Another's Property "Within" Scope of Consent Trespass to Chattels Distinguished from Conversion

An alleged defendant cannot be held liable for negligence without fault. Use of Another's Property "Within" Scope of Consent: If given permission to use property and defendant slightly deviates from the intended purpose and damage occurs to property, there is no liability unless negligence actually caused the damage (e.g parking boat improperly at dock caused it to get hit by another). Trespass to Chattels Distinguished from Conversion: If there was an "express" limit to usage, there might be a claim for damage to property, trespass to chattels, or conversion. If interference with an owner's ownership rights is relatively minor, the defendant will be liable in trespass to chattels, rather than conversion. Only if one exercises dominion over another's property outside of scope of consent will he be charged with conversion.

Negligence Standard Products Liability and Breach of Duty Proximate Cause - Independent Intervening Force Joint Tortfeasors Dual Liability

An independent intervening force may supersede liability of another tortfeasor UNLESS there is a foreseeable danger of risk on the part of the joint tortfeasor. Defendant's failure to inspect and discover a defect is a breach of duty under negligence principles. Applicable standard: a reasonable person realizes a product is dangerous in normal use. It is relevant to consider: 1. the nature of the product 2. source of the product, and 3. the extent of information available to defendant Example: A woman is notified in writing by the manufacturer of her car, warning that, due to the manufacturer's negligence, there was a defect in her car's brake system and she should not drive the car until the brakes were repaired. She decides to drive to work for convenience because the brake shop is adjacent to her job. In route, the brakes fail and her passenger is injured in a wreck caused by the faulty brakes. The woman's negligence was the proximate cause of her passenger's injuries because it was an independent, intervening force which superseded the manufacturer's liability. However, since the danger of negligent driving is a foreseeable danger, it is a danger which the manufacturer must guard against by exercising due care in the manufacture of its cars. A foreseeable danger of risk with an independent intervening cause does not cutoff liability. Therefore, BOTH the manufacturer and defendant will be liable to the plaintiff for his injuries.

Misrepresentation

An intentional misrepresentation by the defendant, made with scienter, which is material and justifiably relied upon by the plaintiff and which causes damages to the plaintiff, is actionable. In general, reliance on a misrepresentation of opinion is not justified. However, there are numerous exceptions to this rule. For instance, in circumstances not amounting to a fiduciary relation, but where the defendant has the confidence of the plaintiff (e.g. defendant is plaintiff's relative), reliance on the defendant's misrepresentations may be justified. Additionally, reliance on the defendant's opinion is more likely to be justified if the defendant possesses much greater expertise than the plaintiff as to the subject of the transaction.

Misrepresentation

An intentional misrepresentation by the defendant, made with the scienter, which is material and justifiably relied upon by plaintiff and, which causes damages to plaintiff, is actionable. A misrepresentation can occur when a defendant makes a false assertion not intending that anyone rely upon it, subsequently discovers that the plaintiff intends to act in reliance upon the false assertion, and fails to disclose that the assertion was false.

Misrepresentation

An intentional misrepresentation by the defendant, made with the scienter, which is material and justifiably relied upon by the plaintiff and, which causes damages to plaintiff, is actionable. Plaintiff must rely on the defendant's misrepresentation, and that reliance must be justified. In general, reliance on an assertion is justified if a reasonable person would have relied upon it.

Duty of Care Owed to an Invitee

An invitee (including a paying customer) is owed a duty of reasonable care, including the duty to inspect premises for potential dangers to invitees.

No Duty To Help a Person in Danger with Limited Exceptions

Barring certain limited exceptions, one has no duty to help a person in danger, even if one could do so easily and without endangering oneself. Once one does undertake to assist someone, however, he must do so with care; Failing to assist will not constitute liability when there was no duty to assist in the first place.

Transferred Intent - From Intended Plaintiff to Another

Battery is committed upon any harmful or offensive contact or touching. Anything connected with the plaintiff (i.e. the plaintiff's "person") will suffice. If another is harmed in the process, then the intent to batter is transferred. Transfer of intent only applies to assault, battery, false imprisonment, and trespass to land or to chattels. **Note, that in this context, transfer of intent is from intended plaintiff to a third party.**

Consent as a Defense in Tort

Consent is a defense to intentional torts. Consent may be found to exist as a matter of law where the plaintiff is unable to consent and the action is necessary to save a person's life. In such a situation, if a reasonable person would believe that a contact is necessary to save the person's life, then the act will not result in liability.

Conversion

Conversion is an intentional act by a defendant that causes the destruction of or a serious and substantial interference with plaintiff's chattel. In determining the seriousness of the interference and the justice of requiring the defendant to pay the full value, the following factors are relevant: 1. the extent and duration of the defendant's exercise of dominion or control; 2. the defendant's intent to assert a right inconsistent with the other's right of control; 3. the defendant's good faith; 4. the extent and duration of the resulting interference with the plaintiff's right of control; 5. the harm done to the chattel; and 6. the inconvenience and expense caused to the plaintiff.

Conversion and Replevin as a Remedy

Conversion is an intentional act by defendant that causes the destruction or serious and substantial interference with the plaintiff's chattel. In conversion cases, a defendant may justly be required to pay the plaintiff the fair market value of the chattel at the time of conversion. Alternatively, the plaintiff may seek recovery of the property itself, in which case the remedy is replevin.

Strict Liability - Products Liability Unreasonably Dangerous to User or Consumer Contrast With Service Providers Where Products are Incidental - Negligence May be Applicable

Generally, providers of services are not held strictly liable for injuries received by their customers. If defective goods are supplied along with services, strict liability is still not applicable, so long as the goods supplied were merely "incidental" to rendition of the services. Example: Service providers such as hairdressers and doctors are usually regarded as primarily providing services, so defective products (medicines, hair dyes, etc.) provided are incidental and not subject to strict liability. However, a defendant providing services may be sued under a negligence theory of products liability.

Liability of Lessor of Property Where There are Known Dangerous Conditions That the General Public will be Subject To

Generally, the lessor of real property is not liable for injuries resulting from conditions on the land. The lease is considered a transfer of all rights and responsibilities with regard to conditions on the land. There are a number of exceptions to this rule, however. One exception involves dangerous conditions existing at the time of transfer of possession of the property when the lessor knows the lessee will be holding the property open to the general public and knows that the lessee will not fix the dangerous conditions before the opening. The interest in protecting the public is considered so important that the lessor continues to be liable. The intent is to motivate lessors to transfer property in safe condition.

"But-for" Causation - Concurrent Liability Co-Tortfeasors - Jointly and Severally Liable

If a plaintiff's injury is a result of the conduct of more than one defendant, and the conduct of each defendant taken alone would not have been sufficient to cause the injury, every defendant's conduct is regarded as a "but for" cause of the injury; The defendants would be concurrently liable because their combined conduct contributed to the overall injury or harm. Thus, they are jointly and severally liable for damages.

False Light

If a public figure plaintiff sues for false light portrayal as to a matter of public interest, he must prove the defendant's malice: 1. knowledge of falsity, or 2. reckless disregard for the truth

Defamation - Qualified Immunity

If a speaker believes his statement to be true and is communicating a matter of interest, he has qualified immunity from defamation (e.g. request for job references).

Strict Liability - Product Defect Jurisdictional Consideration for a Manufacturer's Defense to Strict Products Liability

In a jurisdiction that has not adopted a comparative negligence approach to strict products liability, for a manufacturer to have a defense based on a consumer being aware of risks posed by a product defect, the consumer would also have to appreciate the risk and voluntarily elect to expose herself to it.

Duty of Care Owed by Businesses and its Employees Doctrine of Vicarious Liability - Responsdeat Superior

In general, businesses (and its employees) owe a duty to use reasonable care with its patrons. If an employee fails in this duty by failing to act as a reasonable person similarly situated, the business could be liable for the act of its employee under the doctrine of respondeat superior. This type of vicarious liability respondeat superior, means "let the master answer." When respondeat superior applies, an employer will be liable for an employee's negligent actions or omissions that occur during the course and scope of the employee's employment. This means that the employee must be performing duties for the employer at the time of the negligence for the employer to be held liable under respondeat superior.

Survival Statute - Suit Brought by Decedent's Estate Wrongful Death - Suit Brought by Decedent's Heirs

In most jurisdictions, survival statutes now insure that causes of action for a tort to property or one resulting in personal injury are not extinguished with the injured party's death. In most jurisdictions, there are now two causes of action: 1. the survival action, the proceeds of which become part of the decedent's estate; and 2. the wrongful death action, a separate cause of action brought by the decedent's heirs.

Vicarious Liability - Negligent Acts of an Independent Contractor

In most jurisdictions, the owner of a commercial enterprise open to business, invitees cannot delegate responsibility for the maintenance of the public premises to an independent contractor. If the contractor is negligent in the construction or maintenance of the equipment causing an injury, the business will also be vicariously liable. Note: Generally, there is no vicarious liability with Independent Contractors because it typically only applies to employment relationships.

Strict Liability and Contributory Negligence Plaintiff's Knowledge of Known Propensities Bars Recovery

In strict liability, a defendant is liable for injuring plaintiff even if the defendant used due care. As to certain activities, the policy of the law is to impose liability regardless of how carefully defendant conducted himself. As part of this doctrine, the defendant can be held strictly liable for personal injuries inflicted by his animal if it has "known dangerous propensities," which wild animals are considered to have. However, where plaintiff knew of the danger that justified imposition of strict liability, and his contributory negligence caused exactly that danger to be manifested, such contributory negligence will bar plaintiff's recovery, assuming the jurisdiction applies the traditional contributory negligence doctrine.

Misrepresentation Damages (Majority/Minority Rule)

In the majority of jurisdictions: (Majority rule) - the measure of damages for misrepresentation is measured by the benefit of the bargain theory (100K). (Minority rule) - the out-of-pocket test--the difference (60K) between what the plaintiff paid (460K) and the value of what he received (400K). Example: Home sale price 500k, valued at 400K, sold for 460K.

Intrusion of seclusion

Intrusion of seclusion is a form of invasion of privacy that is present when the defendant unreasonably intrudes into the plaintiff's seclusion. Damages recoverable for invasion of seclusion include compensatory damages (e.g. mental distress unaccompanied by physical injury) and, under appropriate circumstances, punitive damages.

Pure Comparative Negligence

MBE Tip: It is important to remember that you are instructed by the examiners to assume a pure comparative negligence system is in effect unless told otherwise. Under the pure comparative negligence system, a defendant will recover his total damages reduced by the percentage by which his negligence contributed to those damages.

Malicious Prosecution

Malicious prosecution is the institution of criminal proceedings by defendant, done for an improper purpose, and without probable cause, which terminate favorably to the plaintiff, and which cause the plaintiff damages. Thus, damage to a plaintiff is a necessary element of an action for malicious prosecution.

Battery - Mental Illness

Mental illness is not a defense to the intentional tort of battery unless it prevents a person from forming the intent to touch. Even if the person is unable to form the intent to harm or understand that their conduct may cause harm, he is liable for battery if he can form the intent to touch; Note the distinction b/t intent to harm vs intent to touch.

Misuse - Defense to Claim of Products Liability

Misuse is a defense to a claim of products liability. If a plaintiff uses a product in a manner that is neither intended nor foreseeable, she has misused the product and it cannot be defective.

Strict Liability - Defective Product Effect of Law with an "Occasional" Seller

Most jurisdictions hold sellers of mass-marketed products strictly liable for defects in those products. Commercial suppliers at all levels of the distribution chain (i.e., manufacturer, distributor, retailer) as well as commercial lessors (e.g. new home developers, and sellers of used goods) are potential defendants. An "occasional" seller, will not be held strictly liable for defects that cause injury to a plaintiff.

Defamation - Conditional Privilege and Loss of Privilege due to Excessive Publication

One is conditionally privileged to make a defamatory statement as long as the statement is made only to persons who need the information to protect their interests. Thus, an excessive publication would cause the discloser to lose her privilege.

Trespass to Land Lack of Knowledge is No Defense

One is subject to liability to another for trespass to land when a defendant intentionally causes a physical invasion of the plaintiff's land. The fact that one might not have known that the land belonged to another is not a defense to the tort.

Intentional Infliction of Emotional Distress

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and, if bodily harm to the other person results from it, for such bodily harm.

Negligence Action Against Multiple Tortfeasors Jointly and Severally Liable Plaintiff Recovers Full Damages (In Aggregate) No Imputation of Contributory Negligence from One Spouse to Another

The fact that a defendant might be entitled to recover from multiple tortfeasors in a negligence action does not reduce her judgment against any one actor, it merely means that the plaintiff may not satisfy any judgment so as to collect more than her total damages. An action against one actor for negligence does not negate liability of other responsible tortfeasors because any injury suffered by the plaintiff is indivisible, so all the defendants will be jointly and severally liable. Note: The historical imputation of contributory negligence from one spouse to another has been abolished. The spouse cannot be held responsible for the other's negligence.

Interference with Economic Relations

The main type of interference with economic relations that has been marked out by the courts, and regarded as a separate tort, is referred to as inducing breach of contract or interference with contract. To be held liable for interference with a contract, the defendant must be shown to have caused the interference. It is not enough that he merely has reaped the advantages of the broken contract after the contracting party has withdrawn from it.

Requirements for a Negligence Action Strict Liability - Products Liability for Defect Determining Who in the Chain is Liable

To Prove negligence and plaintiff MUST show: 1. a duty was owed to the injured party, 2. the defendant breached that duty, 3. the defendant's negligence was the cause-in-fact and proximate cause of injuries to the plaintiff, and 4. the plaintiff suffered damages as a result If ANY element in the chain is broken, the plaintiff would NOT prevail in a negligence action. Example: A (homeowner) negligently installs the wrong light bulbs in her pool and a neighbor that she invited to a pool party was shocked and suffered severe burns. She bought the bulbs from a local supply store and failed to recognize they were the wrong type for her model of pool. The shock to the neighbor was caused by a defect in the wires in the pool light. The (light company) had bought the wires from a (wire company) and installed the wires in the bulbs before final inspection and packaging. They included literature in the packaging for appropriate use. What is the light company's best defense if a negligence action is brought against them? Analysis: The wire company, as manufacturer of the wires, is liable for their dangerous defects, but the light company, as the entity placing the final finished product in the stream of commerce, must exercise due care in assembling that product and will be liable for any dangerous defects which it negligently passes on to the consumer or user. The wire company's negligence is foreseeable and does not supersede the light company's own negligence. But given the light company exercised reasonable care in labeling it's packaging with information on appropriate use, they have a valid defense.

Misrepresentation

To establish a prima facie case of intentional misrepresentation, a plaintiff must establish that the defendant made a false representation knowing that it was false or with reckless disregard for the truth with the intent that the plaintiff rely on it. The plaintiff must also show justifiable reliance that caused damages.

Conversion

To prevail in an action for conversion, a plaintiff must establish that the defendant intended to and did take an action that interfered with the plaintiff's ownership interest in personal property to such a degree that the defendant should be required to pay the plaintiff the full value of the property. To constitute conversion, rather than merely trespass to chattels, the interference must be severe enough to be control over the chattel inconsistent with the owner's right to possession and sufficient to justify a forced judicial sale of the chattel.

"But-for Causation" (Cause-in-Fact Negligence) Shift in Burden of Proof to Defendants Either Must Disprove Negligence was not the Cause-in-Fact or Both Will be Found Liable

To recover in a negligence action, the plaintiff must be able to show that the defendant's conduct was the cause-in-fact of the injury - that is, that the injury would not have occurred "but for" the conduct of the defendant. Establishing cause-in-fact can be problematic when two or more people have acted negligently and it is unclear which party actually caused the plaintiff's injury. In such a case, if the plaintiff can prove that the injury was caused by one of the defendants, then the court may place the burden of proof on the defendants. Once the burden of proof shifts, each defendant must prove that his own negligence was not the cause-in-fact of the plaintiff's injury, or he will be found liable.

Trespass to Land

Trespass to land is an intentional act that causes a physical invasion of the plaintiff's land. Intent is found even if the entry is made with a good faith belief that the entry is lawful or if the defendant does not realize he has crossed a boundary line. The intent to enter upon the plaintiff's land is sufficient for a trespass action; an intent to trespass is not required. Mistake as to ownership is not a defense.

Defamation - Absolute Defense

Truth is an absolute defense to a defamation claim.

Shopkeeper's Privilege - Reasonable Period of Confinement

Under "shopkeeper's privilege" confinement is permissible if an owner has reasonable belief that a shopper has stolen merchandise and if the owner confines the shopper for a reasonable time and in a reasonable manner to complete a reasonable investigation. (Note, that if at any time detention becomes unreasonable by a shopkeeper, he may become liable for false imprisonment.

Shopkeeper's Privilege - Reasonable Force

Under the "shopkeeper's privilege," a store owner has the right to use reasonable force to detain a grocery shopper for a reasonable time to investigate a possible theft. If so, the shopkeeper would be privileged to act, provided he used reasonable force. A grocery shopper could recover only if a shopkeeper uses unreasonable force in detaining him.

Negligence - Liable for Damages Use of Another's Property "Outside" Scope of Consent Trespass to Chattels - Exceeding Scope of Consent Conversion - Dominion and Control Assessment of Damages

When a defendant's actions "cause" damage to another's property because he deviated from a closely defined scope of authorized use, that defendant can be charged with trespass to chattels. Damages available for trespass to chattels are those actually suffered, such as the cost of repairing damaged property **Trespass to Chattels = Actual Damages** Note: There is no requirement that defendant actually "cause" damage to property. Merely being in possession and "exceeding" the scope of consent (when damage occurs) will suffice for liability (trespass to chattels) and an assessment of damages. Exceeding the scope of the consent: Requires a defendant to have committed an act that was substantially different from the act to which the plaintiff consented. However, to constitute a claim for greater damages recoverable under conversion, there has to be a severe interference with ownership rights (i.e. dominion and control). **Conversion = Full Value** ...because the owner of converted chattels need not accept their return.

Strict Liability - Manufacturer May not be Liable

When there is no manufacturing flaw, no failure to provide warnings, or design defect serious enough to warrant strict products liability, a manufacturer may be absolved in this regard if injury to plaintiff results from improper or other than intended use (e.g. small child drinks liquid detergent and becomes seriously ill). Other theories of negligence may need to be considered, if applicable.

Negligence Per Se - Violation of a Criminal Statute "Unexcused" Violation - Liable "Excused" Violation - Not Liable

Where defendant's conduct also violates a statute that does not provide for civil liability (usually a criminal statute), the statute may establish the standard of conduct for breach of duty purposes. In a majority of jurisdictions, this means that an "unexcused" violation conclusively establishes that defendant breached his duty to plaintiff (often referred to as "negligence per se"). Violation of a criminal statute is negligence per se ONLY if the person harmed is of the class intended to be protected, and if the injury is the type the statute was designed to protect against. Example: Driving home from work one evening, a man suddenly had engine trouble. Fearing that he would permanently damage his engine, the man immediately pulled to the side of the road and parked. The man failed to notice he had parked five feet from a fire hydrant. The man got out of his car to call for help. Shortly thereafter, a car negligently crashed into the man's parked car. A local city ordinance 55 made it illegal to park within 10 feet of a fire hydrant. The man sued the other driver for the damage to his car. What result is most likely? *********** Since the other driver was negligent in colliding with the man's car, the man will recover fully for the damages to his car unless he was comparatively negligent. The man is not comparatively negligent per se because the purpose of the statute was to provide the fire department with access to the fire hydrant, not to avoid collisions. There is nothing in the facts to indicate that the man was otherwise negligent in parking where he did; it was an "excused" violation, and he is therefore not comparatively negligent.

Intentional Infliction of Emotional Distress - Third Party

Where defendant's conduct is directed at a third party, the defendant is subject to liability to plaintiff, assuming the other elements of the tort are satisfied, if the defendant intentionally or recklessly causes severe emotional distress to: 1. a plaintiff who is an immediate family member of the third party, where the plaintiff is present at the time and the defendant is aware of the plaintiff's presence (wherein recovery is available whether or not such distress results in bodily harm); or, 2. to any other plaintiff (regardless of relationship) who is present at the time, if such distress results in bodily harm (e.g. and can be a remote harm such as severe stomach ache caused by the trauma.)