Torts - MBE

Special Negligence Duties Based on Type of Defendant - Possessors of Land - Licensees

A licensee is one who enters onto the land with the possessor's permission for their own purpose or business, rather than for the possessor's benefit. Social guests are considered licensees. (Although firefighters and police officers are typically licensees because they often enter property with implied consent, on public policy grounds, they are owed no duty of care regarding risks that are inherent in their job.) As to licensees, the land possessor has a duty to warn of or make safe hazardous conditions that are: • Concealed • Known to the land possessor in advance The land possessor must exercise reasonable care in the conduct of "active operations" on the property. The possessor has no duty to inspect or repair.

Negligent Misrepresentation

A prima facie case for negligent misrepresentation requires: - Misrepresentation by the defendant in a business or professional capacity - Breach of duty toward a particular plaintiff - Causation - Justifiable reliance - Damages Generally, this action is confined to misrepresentations made in a commercial setting, and liability will attach only if reliance by the particular plaintiff could be contemplated (for example, for negligent misrepresentation, foreseeability that the statement will be communicated to a third party does not make the defendant liable to the third party).

Special Negligence Duties Based on Type of Defendant - Professionals

A professional is required to possess the knowledge and skill of an average member of the profession or occupation in good standing. For doctors, most courts apply a national standard of care to evaluate their conduct.

Rescuers

A rescuer is a foreseeable plaintiff when the defendant negligently put themselves or a third person in peril (danger invites rescue). a. Firefighter's Rule Firefighters and police officers are barred by the "firefighter's rule" from recovering for injuries caused by the inherent risks of their jobs.

Affirmative Duties to Act - Exception: Special Relationship Between Parties

A special relationship between the parties (for example, parent-child) may create a duty to act. Similarly, common carriers, innkeepers, shopkeepers, and others that gather the public for profit owe duties of reasonable care to aid or assist their patrons. In addition, places of public accommodation have a duty to prevent injury to guests by third persons.

Intended Beneficiaries of Economic Transactions

A third party for whose economic benefit a legal or business transaction was made (for example, a beneficiary of a will) may be a foreseeable plaintiff.

Special Negligence Duties Based on Type of Defendant - Possessors of Land - Duties of Vendor of Realty

A vendor must disclose to the vendee concealed, unreason- ably dangerous conditions of which the vendor knows or has reason to know, and which the vendor knows the vendee is not likely to discover on a reasonable inspection.

Loss of Consortium and Tortious Interference with Family Relationships - Nature of Action

Actions for interference with family relationships are derivative. Hence, any defense that would reduce or bar recovery by the injured family member also reduces or bars recovery for interference with the family relationship.

Conversion - Acts of Conversion

Acts of conversion include wrongful acquisition (theft), wrongful transfer, wrongful detention, and substantially changing, severely damaging, or misusing a chattel.

IIED - Actual Damages Required

Actual damages (severe emotional distress), not nominal damages, are required. Proof of physical injury generally isn't required. The more outrageous the conduct, the less proof of damages is required. Intentional infliction of emotional distress is the only intentional tort to the person that requires damages.

Trespass to Chattels - Actual Damages Required

Actual damages—not necessarily to the chattel, but at least to a possessory right—are required.

Basic Standard of Care - The Reasonably Prudent Person

All persons owe a duty to behave with the same care asa hypothetical reasonably prudent person in the conduct of their activities to avoid injuring foreseeable victims.The reasonably prudent person standard is an objective standard, measured against what the average person would do. A defendant's mental deficiencies and inexperience are not taken into account (in other words, low intelligence is no excuse).

Factual Causation - "But For" Test

An act or omission is a factual cause of an injury when the injury would not have occurred "but for" the act or omission. This test applies where several acts (each insufficient to cause the injury alone) combine to cause the injury. A defendant can refute this by showing that the plaintiff would have still been injured "even if" the act or omission did not occur.

Strict Liability - Wild Animals

An owner is strictly liable to licensees and invitees for injuries caused by wild animals (even those kept as pets). a. Strict Liability Not Available to Trespassers Strict liability will generally not be imposed in favor of trespassers. To recover for their injuries from a wild animal (or abnormally dangerous domestic animal) a trespasser must prove the owner's negligence.

Defenses - Consent - Implied Consent

Apparent consent is that which a reasonable person would infer from custom and usage or the plaintiff's conduct, for example, normal contacts inherent in body-contact sports, ordinary incidental contact, etc. Consent implied by law arises when action is necessary to save a person's life or some other important interest in person or property.

Contributory Negligence - Imputed Contributory Negligence

As a general rule, the contributory negligence of a third party will be imputed to a plaintiff (and bar the plaintiff's claim) only when the relationship between the third party and the plain- tiff is such that a court could find the plaintiff vicariously liable for the third party's negligence. Negligence is imputed in employer-employee, partner, and joint venturer relationships. Negligence is not imputed between spouses, parent and child, and automobile owner and driver.

Damages - Duty to Mitigate

As in all cases, the plaintiff has a duty to take reasonable steps to mitigate damages (for example, seek appropriate treatment).

Special Negligence Duties Based on Type of Defendant - Possessors of Land - Known Trespassers

As to discovered or anticipated trespassers, the land possessor must warn of or make safe any conditions that are: - Artificial - Highly dangerous (involving risk of death or serious bodily harm) - Concealed - Known to the land possessor in advance

Conversion - Intent Required

As with trespass to chattels, mistake as to ownership is no defense; the only intent required is the intent to do the act that interferes with the plaintiff's right of possession.

Assumption of the Risk - No Defense to Intentional Torts

Assumption of risk is not a defense to intentional torts, but it is a defense to wanton and willful misconduct.

Reentry onto Land

At common law, one could use force to reenter land only when an intruder came into possession tortiously, such as by a trespass. Under modern law, there are summary procedures such as ejectment for recovering possession of real property. Hence, resort to self-help is no longer allowed.

Battery - Harmful or Offensive Contact

Contact is harmful if it causes actual injury, pain, or disfigurement. Contact is offensive if it would be considered offensive to a reasonable person. Contact is considered offensive only if it hasn't been permitted or consented to. However, consent will be implied for the ordinary contacts of every- day life (for example, minor bumping on a crowded bus). a. Direct or Indirect Contact Contact can be direct (for example, striking the plaintiff) or indirect (for example, setting a trap for the plaintiff to fall into).

Contribution and Immunity

Contribution and indemnity are doctrines that determine how joint tortfeasors allocate between them the damages they must pay to a successful plaintiff. Keep in mind that neither of these doctrines affects how much the plaintiff receives. Rather, they deal with claims by a defendant against other joint tortfeasors to determine how much of the total award each of them ultimately must pay. a. Contribution The rule of contribution allows a defendant who pays more than their share of damages under joint and several liability to have a claim against other jointly liable parties for the excess; in other words, it apportions responsibility among those at fault. *Methods of Apportionment — Comparative Contribution Most states have a comparative contribution system, whereby contribution is imposed in proportion to the relative fault of the various defendants. — Equal Shares In a minority of states, apportionment is in equal shares regardless of degrees of fault. * Contribution Tortfeasor Must Have Liability - The contribution defendant must be originally liable to the plaintiff. If the contribution defendant has a defense that would bar liability (such as intra-family tort immunity), they are not liable for contribution. * Not Applicable to Intentional TortsContribution is not allowed among intentional tortfeasors. b. Indemnification Indemnification involves shifting the entire loss between or among tortfeasors. Indemnity is available in the following circumstances: - In vicarious liability situations - Under strict products liability for the non-manufacturer To keep contribution and indemnity separate in your mind, recall that, for contribution to apply, generally both defendants must have a measur- able degree of culpability for the tort; on the other hand, indemnity usually applies when the paying defendant is much less responsible than the nonpaying defendant or is liable only vicariously because of their relationship with the nonpaying defendant. c. Comparative Contribution As noted above, most comparative negligence states have adopted a comparative contribution system where contribution is in proportion to the relative fault of the various defendants. This approach also supplants indemnification rules based on identifiable differences in degree of fault.

Contributory Negligence - Effect of Contributory Negligence

Contributory negligence completely barred the plaintiff's right to recovery at common law. However, almost all juris- dictions now favor a comparative negligence system (see below).

Nuisance - Defenses - Contributory Negligence

Contributory negligence generally is no defense to nuisance unless the plaintiff's case rests on a negligence theory.

Contributory Negligence - As Defense to Defendant's Violation of Statute

Contributory negligence is a defense to negligence proved by the defendant's violation of an applicable statute unless the statute was designed to protect this class of plaintiffs from their incapacity and lack of judgment (for example, a child injured after darting into street in school zone and getting hit by speeding car of the defendant).

Contributory Negligence

Contributory negligence is negligence on the part of the plaintiff that contributes to the plaintiff's injuries. The standard of care for contributory negligence is the same as for ordinary negligence. Hence, a rescuer will not be deemed contributorily negligent without taking into account the emergency situation. Also, the plaintiff's violation of an applicable statute may be used to establish their contributory negligence.

Contributory Negligence - No Defense to Intentional Torts

Contributory negligence is not a defense to wanton and willful misconduct or intentional tortious conduct.

Strict Liability - Abnormally Dangerous Activities

Courts generally impose two requirements for finding an activity to be abnormally dangerous: - The activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors - The activity is not a matter of common usage in the community Common examples of abnormally dangerous activities include blasting or manufacturing explosives, storing or trans- porting dangerous chemicals or biological materials, and anything involving radiation or nuclear energy. As with negligence, the defendant's liability extends only to foreseeable plaintiffs. Also, the harm must result from the kind of danger to be anticipated from the dangerous activity (or animal) including harm caused by fleeing from the perceived danger. Strict liability does not apply when the injury is caused by something other than the dangerous aspect of the activity (for example, a dynamite truck suddenly blows a tire and hits a pedestrian but does not explode). Questions testing on abnormally dangerous activities will not require you to speculate as to whether the activity falls under this rule. Unless the activity is clearly abnormally dangerous like the ones listed above, or the question specifies that the jurisdiction considers the activity abnormally dangerous, you should not apply strict liability to the activity. Exam questions testing on strict liability often include a statement in the facts or in an answer choice that the defendant exercised reasonable care. Remember that the exercise of reasonable care will not relieve the defendant of liability in a strict liability situation.

Nuisance - Abatement by Self-Help

In the case of a private nuisance, self-help abatement is avail- able after notice to the defendant and their refusal to act. Only necessary force may be used. In public nuisance cases, only a public authority or a private party who has suffered some unique damage can seek an injunction or abatement.

Governmental Tort Immunity

In varying degrees, federal, state, and municipal tort immunity has been eliminated. Where it survives, immunity attaches to governmental, not proprietary, functions. a. Federal Government Under the Federal Tort Claims Act, the United States has waived immunity for tortious acts. However, immunity will still attach for (1) assault, (2) battery, (3) false imprisonment, (4) false arrest, (5) malicious prosecution, (6) abuse of process, (7) libel and slander, (8) misrepresentation and deceit, and (9) interference with contract rights. Immunity is also not waived for acts that are characterized as "discretionary" (those involving considerations of political or economic policy, usually made by senior officials); acts termed "ministerial" (those performed at the operational level of government) are not immune from liability. b. State Governments Most states have substantially waived their immunity to the same extent as the federal government; hence, immunity is retained for discretionary acts and for legislative and judicial decisionmaking. c. Local Governments About half of the states have abolished municipal immunity to the same extent as for the state government. Where municipal immunity has been abolished, the "public duty" rule provides that a duty owed to the public at large is not owed to any particular citizen absent a special relationship between the governmental body and the citizen. Thus a city will not be liable to one whose house burns if its fire department negligently fails to respond to an alarm, because the provision of fire protection services is a public duty. Where municipal immunity still exists, contrast "governmental" functions (functions that could only be performed adequately by the government) and "proprietary" functions (functions that might as well have been provided by a private corpora- tion). Courts limit application of sovereign immunity by not granting it for proprietary functions. d. Immunity of Public Officials Public officials carrying out official duties are immune from tort liability for discretionary acts done without malice or improper purpose. Liability attaches, however, for ministerial acts.

Publication of Facts Placing Plaintiff in False Light

"False light" exists where one attributes to the plaintiff views they do not hold or actions they did not take. The false light must be something highly offensive to a reasonable person under the circumstances. For liability to attach, the defendant must circulate the statement to the public at large. Sharing the statement with only one or a few persons will not be sufficient to trigger liability. a. First Amendment Limitation If the matter is of public interest, actual malice on the defendant's part must be proved.

Defenses - Consent - Capacity Required

Individuals without capacity are deemed incapable of consent, for example, drunken persons, and very young children. Persons with limited capacity, such as older children and persons with mild intellectual disabilities, can consent, but only to things within the scope of their understanding. This requirement of capacity differs from the rule for the intent element of intentional torts, where incapacity is no defense. Everyone (even a young child) has the capacity to commit a tort, but not everyone has the capacity to consent to a tort.

Trespass to Chattels - Intent Required

Intent to trespass isn't required; intent to do the act of interference is all that is needed. The defendant's mistaken belief that they own the chattel is no defense.

Exception for Physical Characteristics Where Relevant

The "reasonably prudent person" is considered to have the same physical characteristics as the defendant if those physical characteristics are relevant to the claim (but remember, one is expected to know one's physical abilities and to exercise the care of a person with such knowledge— for example, a blind person should act as a reasonably prudent person who cannot see and not attempt to, for instance, drive a car).

Other Particular Standards of Conduct - Automobile Driver to Guest

A guest in an automobile is owed a duty of ordinary care. In the few guest statute states, one is liable to nonpaying passengers only for reckless tortious conduct.

Special Negligence Duties Based on Type of Defendant - Possessors of Land - Duty Owed to Users of Recreational Land

A landowner who permits the general public to use their land for recreational purposes without charging a fee is not liable for injuries suffered by a recreational user, unless the landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity.

Trespass to Land - Physical Invasion

The invasion may be by a person or object (for example, throwing a baseball onto the plaintiff's land is a trespass). If intangible matter (for example, vibrations or odor) enters, the plaintiff may have a case for nuisance, but not for trespass since those things are not considered physical.

Trespass to Chattels

The key testable element for trespass to chattels is:• Act by the defendant that interferes with the plaintiff's right of possession in a chattel

Assault

The key testable elements for assault are: 1. Act by the defendant creating a reasonable apprehension in the plaintiff 2. Of an immediate battery (harmful or offensive contact to the plaintiff's person)

Battery

The key testable elements for battery are: 1. Harmful or offensive contact 2. Contact must be with the plaintiff's person Remember in addition to the key testable elements, all intentional torts also require proof of intent and causation.

Conversion

The key testable elements for conversion are: 1.) Act by the defendant that interferes with the plaintiff's right of possession in a chattel 2.) Interference is serious enough in nature or consequences to warrant that the defendant pay the chattel's full value

False Imprisonment

The key testable elements for false imprisonment are: 1.) An act or omission on the part of the defendant that confines or restrains the plaintiff 2.) The plaintiff must be confined to a bounded area

Intentional Infliction of Emotional Distress

The key testable elements for intentional infliction of emotional distress are: 1.) An act by the defendant amounting to extreme and outrageous conduct 2.) The plaintiff must suffer severe emotional distress

Trespass to Land

The key testable elements for trespass to land are: 1.) Physical invasion 2.) Of the plaintiff's real property

Special Negligence Duties Based on Type of Defendant - Possessors of Land - Duties of Lessor and Lessee of Realty

The lessee has a general duty to maintain the premises. The lessor must warn of existing defects of which they are aware or have reason to know, and which they know the lessee is not likely to discover on a reasonable inspection. If the lessor covenants to repair, they are liable for unreasonably dangerous conditions. If the lessor volunteers to repair and does so negligently, they are liable. If the guest of a tenant is injured, the landlord may be liable as lessor of the premises. But don't stop there—remember that the tenant may also be liable to the guest because of the tenant's status as the owner/occupier of the premises.

Conversion - Seriousness of Interference

The longer the withholding period and the more extensive the use, the more likely it is to be conversion. A less serious interference is trespass to chattels.

Charitable Immunity

The majority of jurisdictions have eliminated charitable immunity.

Damages - Property Damage

The measure of damage is the reasonable cost of repair or, if the property is totally or nearly destroyed, its fair market value at the time of the accident. Emotional distress damages generally cannot be recovered for negligent harm to property. Under this last stated rule, a person cannot recover for emotional distress if another party negligently injures or kills their pet.

Conversion - Remedies

The plaintiff may recover damages (fair market value at the time of conversion) or possession (replevin).

Assault - Requirement of Immediacy

The plaintiff must be apprehensive that they are about to become the victim of an immediate battery.

Bailor for Bailee

Under the general rule, the bailor is not vicariously liable for the tortious conduct of their bailee. a. Negligent Entrustment As above, the bailor may be liable for their own negligence in entrusting the bailed object. (This is not vicarious liability.)

Statutory Standards of Care - Effect of Violation or Compliance

Under the majority view, an unexcused statutory violation is negligence per se; in other words, it establishes the first two requirements in the prima facie case—a conclusive presumption of duty and breach of duty. In contrast, even though violation of the applicable statute may be negligence, compliance with the statute will not necessarily establish due care.

Joint and Several Liability

Under the traditional common law rule, when two or more negligent acts combine to proximately cause an indivisible injury, each negligent actor will be jointly and severally liable (that is, liable to the plaintiff for the entire damage incurred). If the injury is divisible, each defendant is liable only for the identifiable portion. a. Defendants Acting in Concert When two or more defendants act in concert and injure the plaintiff, each is jointly and severally liable for the entire injury. This is so even if the injury is divisible. b. Statutory Limitations Many states have abolished joint liability in cases based on fault either (1) for those defendants judged to be less at fault than the plaintiff, or (2) for all defendants regarding noneco- nomic damages. In these cases, liability will be proportional to the defendant's fault.

Special Negligence Duties Based on Type of Defendant - Possessors of Land

Under the traditional rule followed in many states, the duty owed a plaintiff on the premises for dangerous conditions on the land depends on the plaintiff's status as unknown trespasser, known trespasser, licensee, or invitee. MBE questions testing the distinction between licensees and invitees will specify that the jurisdiction follows the traditional rules for land possessor liability.

Intra-Family Tort Immunities

Under the traditional view, one member of a family unit could not sue another in tort for personal injury. Today, most states have abolished spousal immunity. A slight majority have also abolished parent-child immunity (but generally do not allow children to sue merely for negligent supervision). Those that retain parent-child immunity do not apply it in (1) cases alleging intentional tortious conduct, or (2) automobile accident cases to the extent of insurance coverage.

Defamation - Falsity

Under traditional common law, the plaintiff did not have to prove that the statement was false. Rather the defendant was obliged to prove truth as a defense. Many states have altered that rule, however, and now require the plaintiff to prove falsity as part of the case-in-chief. Even in states that still follow the traditional rule, the plaintiff must prove falsity in any case where the plaintiff is constitutionally obligated to prove fault. If you see a true statement on the exam, consider whether the plaintiff may have a cause of action for intentional infliction of emotional distress or invasion of right to privacy (unless the plaintiff is a public figure or a matter of public concern is involved).

IIED - Requisite Intent

Unlike for other intentional torts, recklessness as to the effect of the defendant's conduct will satisfy the intent requirement.

Vicarious Liability

Vicarious liability is liability that is derivatively imposed. This means that one person (the active tortfeasor) commits a tortious act against a third party and another person (the passive tortfeasor) will be liable to the third party for this act. The basic situations that you should note for bar examination purposes are set out below.

Statutory Standards of Care - Excuse for Violation

Violation of some statutes may be excused where compliance would cause more danger than violation or where compliance would be beyond the defendant's control.

Breach - Res Ipsa Loquitor - Effect of Res Ipsa Loquitor

Where res ipsa loquitur is established, the plaintiff has made a prima facie case and no directed verdict may be given for the defendant. The plaintiff can still lose, however, if the inference of negligence is rejected by the trier of fact. Questions testing on res ipsa loquitur often have the defendant making a motion for a directed verdict. These questions don't require you to memorize rules of civil procedure—all you need to remember is the following: Occasionally, the plaintiff may also move for a directed verdict. The plaintiff's motion should always be denied except in the rare case where the plaintiff has established negligence per se through violation of an applicable statute and there are no issues of proximate cause.

Factual Causation - Merged Cases - Substantial Factor

Where several causes bring about injury, and any one alone would have been sufficient to cause the injury, the defendant's conduct is the cause in fact if it was a substantial factor in causing the injury. Some courts refer to this situation as one involving "multiple sufficient causes."

Breach - Violation of Statute

Where the duty of care is set by a statute under the rules that govern using statutes in negligence litigation, proof of violation of the statute is conclusive evidence of breach of duty. This is known as "negligence per se." Causation and damages must still be established by the plaintiff.

Exception for Superior Skill or Knowledge

While the reasonably prudent person standard sets a minimum level of care, a defendant who has knowledge or experience superior to that of an average person is required to exercise that experience.

Invasion of Privacy Defenses

Some defenses to the right of privacy actions are consent and the defamation privilege defenses. Truth generally is not a good defense; nor is inadvertence, good faith, or lack of malice.

Private Nuisance - Substantial Interference

Substantial interference is interference that is offensive, inconvenient, or annoying to the average person in the community. It is not substantial if it is merely the result of the plaintiff's hypersensitivity or specialized use of their own property.

False Imprisonment - Methods of Confinement or Restraint

Sufficient acts of restraint include: - Physical barriers - Physical force directed against the plaintiff, immediate family, or personal property (for example, confiscating the plaintiff's purse) - Direct threats of force - Indirect or implied threats of force - Failure to release the plaintiff when under a legal duty to do so (for example, a taxi driver refusing to let a customer out) - Invalid use of legal authority (for example, false arrest) Insufficient acts of restraint include: - Moral pressure - Future threats

Survival of Tort Actions

Survival acts allow one's cause of action to survive the death of one or more of the parties. The acts apply to actions involving torts to property and torts resulting in personal injury. However, torts invading intangible personal interests (for example, defamation, invasion of right of privacy, malicious prosecution) expire upon the victim's death.

Defenses to Intentional Torts

1. Consent 2. Self Defense 3. Defense of Others 4. Defense of Property 5. Recapture of Chattels 6. Necessity (Public & Private)

Proximate Causation - General Rule - Scope of Foerseeable Risk

A defendant generally is liable for all harmful results that are the normal incidents of and within the increased risk caused by their negligent acts. This is a foreseeability test. Questions raising proximate cause issues will not require you to make a judgment call on foresee- ability in a close case. Often the call of the ques- tion will be whether one or both parties are entitled to summary judgment—which should be denied if there is any issue of foreseeability for the jury. In other cases, the facts in the question will be so clear-cut that common sense will tell you immediately whether the harm that occurred was foreseeable.

NIED - Bystander Cases

A bystander outside the "zone of danger" of physical injury who sees the defendant negligently injuring another can recover damages for their own distress as long as: - The plaintiff and the person injured by the defendant are closely related - The plaintiff was present at the scene of the injury and personally observed or perceived the event Most states drop the requirement of physical symptoms in this situation.

Statutory Standards of Care

A clearly stated specific duty imposed by a statute providing for criminal penalties (including fines for regulatory offenses and ordinances, such as for speeding) may replace the more general common law duty of due care if: • The plaintiff is within the protected class • The statute was designed to prevent the type of harm suffered by the plaintiff

Defamation - Defamatory Statement

A defamatory statement is one tending to adversely affect one's reputation. A statement of opinion is actionable only if it appears to be based on specific facts, and an express allegation of those facts would be defamatory. Name-calling is insufficient. a. Inducement and Innuendo If the statement is not defamatory on its face, the plaintiff may plead additional facts as "inducement" to establish defamatory meaning by "innuendo." b. Living Person Requirement Any living person may be defamed. Defamation of a deceased person is not actionable. In a limited sense, a corporation, unincorporated association, or partnership may be defamed (for example, by remarks as to its financial condi- tion, honesty, integrity, etc.).

Public Necessity

A defendant can raise public necessity as a defense if they acted to avert an "imminent public disaster."

Representation Theories of Product Liability

A defendant may be liable when a product does not live up to some affirmative representation. The two representation theories are: 1. ) Express warranty 2.) Misrepresentation of fact - Express Warranty Any affirmation of fact or promise concerning goods that becomes part of the basis of the bargain creates an express warranty. An express warranty may also be made in a lease of goods. — Who Can Sue? - Any consumer, user, or bystander can sue. If a buyer sues, the warranty must have been "part of the basis of the bargain." If the plaintiff is not in privity (for example, a bystander), they need not have relied on the representation as long as someone did. - Breach - Fault need not be shown to establish breach. Plaintiff need only show that the product did not live up to its warranty. - Causation, Damages, and Defenses - Causation, damages, and defenses are treated just as they are under implied warranties. - Disclaimers - A disclaimer will be effective only in the unlikely event that it is consistent with the warranty. Misrepresentation of Fact A seller will be liable for misrepresentations of facts concerning a product where: - The statement was of a material fact concerning quality or uses of goods (mere puffery insufficient) - The seller intended to induce reliance by the buyer in a particular transaction Liability is usually based on strict liability but may also arise for intentional or negligent misrepresentations. - Justifiable Reliance - Justifiable reliance is required (in other words, the representation was a substantial factor in inducing the purchase). Reliance need not be the victim's (it may be a prior purchaser's). Privity is irrelevant. - Causation and Damages - Actual cause is shown by reliance. Proximate cause and damages are the same as for strict liability. - Defenses - Assumption of risk is not a defense if the plaintiff is entitled to rely on the representation. Contributory negligence is the same as in strict liability unless the defendant committed intentional misrepresentation.

Other Particular Standards of Conduct - Emergency Situations

A defendant must act as a reasonably prudent person would under the same emergency conditions. The emergency is not to be considered, however, if it is of the defendant's own making.

Special Negligence Duties Based on Type of Defendant - Professionals - Duty to Disclose Risks of Treatment

A doctor has a duty to disclose the risks of treatment to enable a patient to give an informed consent. A doctor breaches this duty if an undisclosed risk was serious enough that a reasonable person in the patient's position would have withheld consent on learning of the risk.

Duty of Care Only to Foreseeable Plaintiffs

A duty of care is owed only to foreseeable plaintiffs—the class of persons who were foreseeably endangered by the defendant's negligent conduct.

Prenatal Injuries

A duty of care is owed to a viable fetus. In cases of failure to diagnose a congenital defect or properly perform a contraceptive procedure, the child may not recover for "wrongful life," but the parents may recover damages in a "wrongful birth" or "wrongful pregnancy" action for any additional medical expenses and for pain and suffering from labor; ordinary child-rearing expenses, however, cannot be recov- ered.

Defamation - Fault on Defendant's Part

A majority of states require a showing of fault on the part of the defendant. In addition, there are constitutional limitations depending on the plaintiff's status. a. Public Official or Figure Must Prove Actual Malice Under the New York Times v. Sullivan rule, actual malice must be proved in defamation cases brought by public officials and public figures. - What Constitutes a Public Figure? A person becomes a "public figure" by achieving pervasive fame or notoriety or by voluntarily assuming a central role in a particular public controversy. -Definition of Actual Malice Actual malice (as defined by New York Times v. Sullivan) is: * Knowledge that the statement was false OR *Reckless disregard as to whether it was false This is a subjective test. The defendant's spite or ill will is not enough to constitute malice. Deliberately altering a quotation may constitute malice if the alteration causes a material change in the meaning conveyed by the quotation. b. Private Persons Must Prove Negligence If Matter of Public Concern Under Gertz v. Welch, when a private person is the plain- tiff, only negligence regarding the falsity must be proved if the statement involves a matter of "public concern." If the statement is not a matter of public concern, constitutional restrictions do not apply (but note that many states require a showing of negligence as a matter of state law). If the defen- dant is negligent, only "actual injury" damages are recover- able. However, if actual malice is found, damages may be presumed, and punitive damages allowed. - What Constitutes Actual Injury? - Actual injury is not limited to economic damages. It may include damages for impairment to reputation and personal humiliation as long as the plaintiff presents evidence of such damages (in other words, no presumed damages). - What Is a Matter of Public Concern? - To determine whether the defamatory statement involves a matter of public concern or private concern, the courts will look at the content, form, and context of the publication. Note that the status of the plaintiff (public figure or private person) is relevant only for the degree of fault required.

Nuisance

A nuisance is an invasion of property rights by tortious conduct. There are two types of nuisance: private and public.

Parent for Child

A parent is not vicariously liable for the tortious conduct of their child at common law. Note, however, that most states, by statute, make parents liable for the willful and intentional torts of their minor children up to a certain dollar amount (for example, $10,000). a. Child Acting as Agent for Parents Courts may impose vicarious liability if the child committed a tort while acting as the agent for the parents. b. Parent Liable for Own Negligence The parent may be held liable for their own negligencein allowing the child to do something, for example, use a dangerous object without proper instruction. Furthermore,if the parent is apprised of the child's conduct on past occasions showing a tendency to injure another's personor property, they may be liable for not using due care in exercising control to mitigate such conduct, for example, by allowing the child to play with other children that they have a history of attacking.

Loss of Consortium and Tortious Interference with Family Relationships - Parent-Child

A parent may maintain an action for loss of a child's services and consortium as a result of the defendant's tortious conduct, whether intentional or negligent. A child, however, has no action in most states against one who tortiously injures their parent.

Necessity

A person may interfere with the real or personal property of another when it is reasonably and apparently necessary in an emergency to avoid injury from a natural or other force and when the threatened injury is substantially more serious than the invasion that is undertaken to avert it. There are two types of necessity:

Other Particular Standards of Conduct - Common Carriers and Innkeepers

Common carriers and innkeepers are held to a very high degree of care, meaning they are liable for slight negligence. For the higher common carrier and innkeeper standards to apply, the plaintiff must be a passenger or guest.

Employer-Employee

An employer will be vicariously liable for tortious acts committed by their employee if the tortious acts occur within the scope of the employment relationship. This concept is also known as the "doctrine of respondeat superior." a. Frolic or Detour An employee making a minor deviation from their employ- er's business for their own purposes is still acting within the scope of employment. If the deviation in time or geographic area is substantial, the employer is not liable. b. Intentional Torts It is usually held that intentional tortious conduct by employees is not within the scope of employment. Exceptions: - The employee is furthering the business of the employer, for example, removing customers from the premises because they are rowdy - Force is authorized in the employment, for example, a bouncer - Friction is generated by the employment, for example, bill collector. c. Liability for Own Negligence Employers may be liable for their own negligence by negligently selecting or supervising their employees. (This is not vicarious liability.)

Strict Liability - Domesticated Animals

An owner is not strictly liable for injuries caused by domestic animals (including farm animals) unless they have knowledge of that particular animal's dangerous propensities that are not common to the species. Injury caused by the normally dangerous characteristics of domestic animals (for example, bulls or honeybees) does not create strict liability. Don't forget to consider that a landowner may be liable on intentional tort grounds for injuries inflicted by vicious watchdogs. a. Trespassing Animals An owner is strictly liable for reasonably foreseeable damage done by a trespass of his animals.

Special Negligence Duties Based on Type of Defendant - Children

Children are held to the standard of a child of like age, intelligence, and experience. This is a subjective test. A child under five is usually without the capacity to be negligent. Children engaged in potentially dangerous adult activities may be required to conform to an "adult" standard of care.

Damages

Damage is an essential element of negligence; thus, damage will not be presumed (and nominal damages are not avail- able). In all cases, the defendant takes the plaintiff as they find the plaintiff; meaning, the defendant is liable for all damages, including aggravation of an existing condition, even if the extent or severity of the damages was unforeseeable. This is also known as the "eggshell-skull" plaintiff rule

Damages - Collateral Source Rule

Damages are not reduced just because the plaintiff received benefits from other sources (for example, health insurance).

Private Nuisance - Trespass to Land Distinguished

In a trespass, there is an interference with the landowner's exclusive possession by a physical invasion; in a private nuisance, there is an interference with use or enjoyment.

Partners and Joint Venturers

Each member of a partnership or joint venture is vicariously liable for the tortious conduct of another member committed in the scope and course of the affairs of the partnership or joint venture.

Loss of Consortium and Tortious Interference with Family Relationships - Between Spouses

Either spouse may bring an action for indirect interference with consortium and services caused by the defendant's intentional or negligent tortious conduct against the other spouse.

False Imprisonment - What Is a Bounded Area?

For an area to be "bounded," freedom of movement must be limited in all directions. There must be no reasonable means of escape known to the plaintiff.

Assault - Knowledge of Act

For apprehension to be shown, the plaintiff must have been aware of the threat from the defendant's act, although the plaintiff need not be aware of the defendant's identity.

Proximate Causation

In addition to being a cause in fact, the defendant's conduct must also be the proximate cause of the injury. Even though the conduct actually caused the plaintiff's injury, it might not be deemed to be the proximate cause. Thus, the doctrine of proximate causation is a limitation of liability and deals with liability or nonliability for unforeseeable or unusual consequences of one's acts.

Affirmative Duties to Act

Generally, one does not have a legal duty to act. There is no duty to rescue.

Affirmative Duties to Act - Duty to Prevent Harm from Third Persons

Generally, there is no duty to prevent a third person from injuring another. An affirmative duty may be imposed, however, if one has the actual ability and authority to control a person's actions, and knows or should know the person is likely to commit acts that would require exercise of this control.

Defenses - Consent - Exceeding Consent Given

If the defendant exceeds the scope of consent by committing a more intrusive invasion or by invading a different interest than the one the plaintiff referenced, they may be liable.

Assault - Apparent Ability Sufficient

If the defendant has the apparent ability to commit a battery, this will be enough to cause a reasonable apprehension.

Nuisance - Injunctive Relief

If the legal remedy of damages is unavailable or inadequate (for example, the nuisance will cause irreparable injury), injunctive relief will be awarded. In this case, the court will consider the relative hardships. However, hardships will not be balanced if the defendant's conduct was willful.

Other Particular Standards of Conduct - Bailment Duties

In a bailment relationship, the bailor transfers to the bailee possession of the chattel but not title (for example, bailor loans their car to bailee). a. Duties Owed by Bailee The bailee's standard of care depends on who benefits from the bailment: (1) for a sole benefit of the bailor bailment, there is a low standard of care; (2) for a sole benefit of the bailee bailment, there is a high standard of care; and (3) for a mutual benefit bailment (typically a bailment for hire), there is the ordinary care standard. The modern trend applies a duty of ordinary care under the circumstances, whereby the type of bailment is just one factor taken into account. b. Duties Owed by Bailor For a sole benefit of the bailee bailment, the bailor must inform the bailee of known, dangerous defects in the chattel. For a bailment for hire, the bailor must inform the bailee of chattel defects of which they are or should be aware.

NIED - Near Miss Cases - Plaintiff Must Suffer Physical Symptoms from the Distress

In a near miss case, most courts require that the emotional distress caused by defendant's conduct manifest itself in physical symptoms (note that severe shock to the nervous system that causes physical symptoms will satisfy this requirement). A growing minority of states have dropped the requirement of physical symptoms.

Comparative Negligence

In comparative negligence states, the plaintiff's contributory negligence is not a complete bar to recovery. Rather, the trier of fact weighs the plaintiff's negligence and reduces damages accordingly (for example, if the plaintiff is 10% at fault, their damages are reduced by 10%). There are no rules governing the assignment of fault; the numbers are left to the discretion of the jury. A majority of states have adopted partial comparative negligence, which still bars the plaintiff's recovery if their negligence was more serious than the defendant's negligence (or in some states at least as serious as the defendant's). If more than one defendant has contributed to the plaintiff's injury, the plaintiff's negligence will be compared with the total negligence of all the defendants combined. States that have adopted pure comparative negligence allow recovery no matter how great plaintiff's negligence was. On the MBE, assume that pure comparative negli- gence applies unless the question states other- wise.

Independent Contractor Situations

In general, the hiring party (the principal) will not be vicariously liable for the tortious acts of an independent contractor (the agent). There is an exception, however, for situations where a duty is simply nondelegable due to public policy considerations, for example, the duty of a business to keep its premises safe for customers. a. Liability for Own Negligence The employer may be liable for their own negligence in selecting or supervising the independent contractor (for example, a hospital may be liable for contracting with an unqualified and incompetent health care provider who negli- gently treats the hospital's patient). (This is not vicarious liability.)

Breach - Res Ipsa Loquitor

In some cases, the very occurrence of an event may tend to establish a breach of duty. The doctrine of res ipsa loquitur requires the plaintiff to show that: - The accident causing the injury is a type that would not normally occur unless someone was negligent - The negligence is probably attributable to the defendant (meaning this type of accident ordinarily happens because of the negligence of someone in the defendant's position) This can often be shown by evidence that the instrumentality causing the injury was in the exclusive control of the defendant.

Special Negligence Duties Based on Type of Defendant - Possessors of Land - Invitees

Invitees enter onto the land in response to an invitation by the possessor of the land (meaning they enter for a purpose connected with the business of the land possessor or enter as members of the public for a purpose for which the land is held open to the public). An invitee will lose invitee status if they exceed the scope of the invitation. The landowner or occupier owes a duty to invitees regarding hazardous conditions that are: - Concealed - Known to the land possessor in advance or could have been discovered by a reasonable inspection

False Imprisonment - Time of Confinement

It is irrelevant how short the period of the confinement is.

Appropriation of Plaintiff's Picture or Name

It is necessary to show unauthorized use of the plaintiff's picture or name for the defendant's commercial advantage. Liability is generally limited to advertisements or promotions of products or services. Mere economic benefit to the defendant (not in connection with promoting a product or service) by itself is not sufficient.

Negligent Infliction of Emotional Distress (NIED)

Keep in mind that actions for infliction of emotion- al distress are not the only means of recovering damages for emotional distress. If physical injury has been caused by commission of a tort, the plaintiff can "tack on" damages for emotional distress as a "parasitic" element of their physical injury damages, without the need to consider the elements of the emotional distress torts.

Implied Assumption of the Risk

Knowledge may be implied where the risk is one that an average person would clearly appreciate. The plaintiff may not be said to have assumed the risk where there is no available alternative to proceeding in the face of the risk orin situations involving fraud, force, or an emergency. Also, common carriers and public utilities may not limit their liability by disclaimer, and members of a class protected by statute will not be deemed to have assumed any risk.

Defamation

The elements of defamation are: 1.) A defamatory statement that specifically identifies the plaintiff 2.) Published to a third party 3.) Damage to the plaintiff's reputation 4.) Falsity of the defamatory language 5.) Fault on the part of the defendant

Contributory Negligence - Last Clear Chance—An Exception to Contributory Negligence

Last clear chance permits a plaintiff to recover despite their contributory negligence. Under this rule, the person with the last clear chance to avoid an accident who fails to do so is liable for negligence. (Last clear chance is essentially the plaintiff's rebuttal to the defense of contributory negligence.) a. Helpless Peril In many states, if the plaintiff is in "helpless peril," the defendant will be liable if they knew or should have known of the plaintiff's predicament. b. Inattentive Peril In "inattentive peril" situations (that is, where the plaintiff could have extricated themselves if attentive), the defendant must actually have known of the plaintiff's predicament. c. Prior Negligence Cases For the last clear chance doctrine to apply, the defendant must have been able, but failed, to avoid harming the plaintiff at the time of the accident. If the defendant's only negligence occurred earlier, the doctrine will not apply.

Nuisance - Defenses - Legislative Authority

Legislative authority for "nuisance activity" (for example, a zoning ordinance) is not an absolute defense but is persuasive.

Strict Liability

Liability without fault

Defamation Defenses - Mitigating Factors

Mitigating factors (for example, no malice, retraction, anger of the speaker provoked by the plaintiff) may be considered by the jury on the damages issue; they are not defenses to liability.

Products Liability

Products liability refers to the liability of a supplier of a defective product to someone injured by the product.

Special Negligence Duties Based on Type of Defendant - Possessors of Land - Trespassing Children—Attractive Nuisance Doctrine

Most courts impose on a landowner the duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by dangerous artificial conditions on their property. To establish the doctrine's applicability, the plaintiff must show: - A dangerous condition on the land that the owner is or should be aware of - The owner knows or should know that children might trespass on the land - The condition is likely to cause injury (it is dangerous be- cause of the child's inability to appreciate the risk) - The expense of remedying the situation is slight com- pared with the magnitude of the risk For liability to attach, the requirements above must be shown. The child does not have to be attracted onto the land by the dangerous condition, nor is the attraction alone enough for liability.

Products Liability (Negligence)

Negligence in a products case is proved the same as in a "standard" negligence case. The plaintiff may invoke res ipsa loquitur if the defect is something that would not usually occur without the manufacturer's negligence. Note that it is very difficult to hold intermediaries (such as retailers and wholesalers) liable for negligence because they can usually satisfy their duty through a cursory inspection. In addition, an intermediary's negligent failure to discover a defect does not supersede the original manufacturer's negligence unless the intermediary's conduct exceeds ordinary foreseeable negligence. - Who Can Sue? Privity with the defendant is no longer required, so any foreseeable plaintiff can sue. - Nature of Damages - Recoverable Physical injury or property damage must be shown. (Recovery will be denied if the sole claim is for economic loss.) - Disclaimers Ineffective - As with strict liability, disclaimers are irrelevant in cases based on negligence if personal injury or property damages occur.

Special Negligence Duties Based on Type of Defendant - Possessors of Land - Unknown Trespassers

No duty is owed to an undiscovered trespasser.

Nuisance - Defenses - Conduct of Others

No one actor is liable for all damage caused by concurrence of their acts and others.

Damages - Nonrecoverable Items

Nonrecoverable items include: (1) interest from the date of damage in a personal injury action (sometimes called "pre-judgment interest"), and (2) attorneys' fees.

Factual Causation

Once negligent conduct is shown (a breach of the standard of care owed a foreseeable plaintiff), the plaintiff must show that the conduct was the cause of their injury. For liability to attach, the plaintiff must show both factual cause (actual cause) and proximate cause. Several tests exist for determining if the defendant's conduct is a factual cause of the plaintiff's injury.

Affirmative Duties to Act - Exception: Peril Due to Own Conduct

One has a duty to assist someone they have negligently or innocently placed in peril.

Nuisance - Defenses - Coming to the Nuisance

One may "come to a nuisance" (purchasing land next to an already existing nuisance) and, thereafter, pursue an action. It is generally not a bar to the plaintiff's action unless the plain- tiff "came to the nuisance" for the sole purpose of bringing a harassing lawsuit.

Affirmative Duties to Act - Assumption of Duty by Acting

One may assume a duty to act by acting (for example, once the defendant undertakes to aid someone, they must do so with reasonable care). Exception: Many states have enacted Good Samaritan statutes, which exempt doctors, nurses, etc., from liability for ordinary, but not gross, negligence.

Conversion - Subject Matter of Conversion

Only tangible personal property and intangibles that have been reduced to physical form (for example, a promissory note) are subject to conversion.

Battery - Plaintiff's Person

Plaintiff's person includes anything connected to the plaintiff (for example, clothing or a purse).

Private Necessity

Private necessity can be a defense when the action was to prevent serious harm to a limited number of people. Under private necessity, the actor must pay for any injury they cause (unless the act was to benefit the property owner). Necessity is a defense only to property torts.

Private Nuisance

Private nuisance is a substantial, unreasonable interference with another private individual's use or enjoyment of property that the other individual actually possesses or has a right of immediate possession. Nuisance questions on the MBE will often flag the correct choice with a key term from the definition of nuisance—for example, the defendant is liable because the activity created a "substantial" (or "unreason- able") interference with the plaintiff's use of their land.

Public Nuisance

Public nuisance is an act that unreasonably interferes with the health, safety, or property rights of the community, for example, using a building for criminal activities such as prostitution. Recovery by a private party is available for a public nuisance only if the private party suffered unique damage not suffered by the public at large.

Defamation - Publication

Publication means communication of the defamation to a third person who understands it. Such publication can be made either intentionally or negligently. It is the intent to publish, not the intent to defame, that is the requisite intent. Each repetition is a separate publication. However, for magazines, newspapers, etc., most states have adopted a "single publication" rule under which all copies are treated as one publication. An exam favorite is the situation where a defamatory statement about the plaintiff is made only to the plaintiff. As a general rule, in this situation there is no publication and thus no defamation. a. Who May Be Liable? Primary publishers (for example, newspapers, TV stations, etc.) are liable to the same extent as the author or speaker. One who repeats a defamation is liable on the same general basis as the primary publisher (even if she states the source or makes it clear that she does not believe the defamation). One selling papers or playing audio files is a secondary publisher and is liable only if he knows or should know of the defamatory content. An Internet service provider is not treated as a publisher when a user of its service posts defamatory content.

Damages - Punitive Damages

Punitive damages generally are not available in negligence cases. However, a plaintiff may recover punitive damages if defendant's conduct is "wanton and willful," reckless, or malicious.

Trespass to Land - Real Property

Real property includes not only the surface, but also airspace and subterranean space for a reasonable distance. Note that the trespass claim belongs to the person with the right to possess the property, and not necessarily the owner, meaning that if you enter a rented apartment without permission, the tenant has a claim against you, not the landlord.

Intentional Torts - Act by Defendant

The act required is a volitional movement by the defendant.

Assault - Apprehension Must Be Reasonable

The apprehension of harmful or offensive contact must be reasonable. Courts generally will not protect a plaintiff against exaggerated fears of contact. a. Fear Not Required Apprehension shouldn't be confused with fear or intimidation (for example, a weakling can cause a bully to apprehend offensive contact for purposes of assault).

Recapture of Chattels

The basic rule is the same as that for reentry of land at common law: When another's possession began lawfully(for example, a conditional sale), one may use only peaceful means to recover the chattel. Reasonable force may be used to recapture a chattel only when in hot pursuit of one who has obtained possession wrongfully, for example, by theft.

Negligence

The elements of a prima facie case of negligence are: 1.) A duty on the part of the defendant to conform to a specific standard of conduct for protection of the plaintiff against an unreasonable risk of injury 2.) A breach of that duty by the defendant 3.) The breach is the actual and proximate cause of the plaintiff's injury 4.) Damages A duty of care is owed to all foreseeable plaintiffs. If the defendant's conduct creates an unreasonable risk of injury to persons in the position of the plaintiff, the general duty of care extends from the defendant to the plaintiff. The extent of the duty is determined by the applicable standard of care. Therefore, when confronted with a negligence question, you should always ask: - To whom do you owe a duty? - What is the applicable standard of care?

Proximate Cause - Common Foreseeable Intervening Forces

The defendant is liable when their negligence caused a foreseeable reaction from an intervening force or created a foreseeable risk that an intervening force would harm the plaintiff. The following intervening forces that are normal responses or reactions to the situation created by the defendant's negligent act are almost always foreseeable: - Medical malpractice - Negligence of rescuers - Protection or reaction forces to the defendant's conduct, including efforts to protect person or property - Disease or accident substantially caused by the original injury Intervening forces that are not just a natural response or reaction to the situation created by the defendant's conduct may be foreseeable if the defendant's negligence increased the risk of harm from these forces. These intervening forces include (1) negligent acts of third persons, (2) crimes and intentional torts of third persons, and (3) acts of God. For example, if a valet leaves the keys in a car, and a thief steals the car, the valet may be liable because the thief's conduct may be considered a foreseeable intervening force. a. Compare-Superseding Forces Intervening forces that produce unforeseeable results (results not within the increased risk created by the defen- dant's negligence) are generally deemed unforeseeable and superseding. Superseding forces break the causal connec- tion between the defendant's initial negligent act and the plaintiff's ultimate injury, thus relieving the defendant of liability. For example, if the defendant negligently blocks a road, forcing the plaintiff to take an alternate road, and then another driver negligently collides with the plaintiff on this road, the other driver's conduct is an unforeseeable inter- vening force because the defendant's negligence did not increase the risk of its occurrence. Thus, the other driver is a superseding force that cuts off the defendant's liability for the original negligent act of blocking the road.

Defenses - Consent - Express (Actual) Consent

The defendant is not liable if the plaintiff expressly consents to the defendant's conduct. Exceptions: (1) mistake will undo express consent if the defendant knew of and took advantage of the mistake; (2) consent induced by fraud will be invalidated if it goes to an essential matter, but not a collateral matter; and (3) consent obtained by duress will be invalidated unless the duress is only threats of future action or future economic deprivation.

NIED - Special Relationship Between Plaintiff and Defendant

The defendant may be liable for directly causing the plain- tiff severe emotional distress when a duty arises from the relationship (typically commercial in nature) between the plaintiff and a defendant, such that the defendant's negligence has great potential to cause emotional distress (for example, doctor's misdiagnosis that patient has terminal illness; mortuary's negligent cremation of deceased contrary to family's instructions). Most states drop the requirement of physical symptoms in this situation as well.

Trespass to Land - Intent

The defendant need intend only to enter onto that particular piece of land. The defendant need not know that the land belonged to another.

Interference with Business Relations - Privileges

The defendant's conduct may be privileged if it is a proper attempt to obtain business for itself or protect its interests. A privilege is more likely to be found if the defendant: (1) interfered only with the plaintiff's prospective business rather than with existing contracts; (2) used commercially accept- able means of persuasion rather than illegal or threatening tactics; (3) is a competitor of the plaintiff seeking the same prospective customers; or (4) has a financial interest in or responsibility for the third party, or is responding to the third party's request for business advice.

NIED - Near Miss Cases

The duty to avoid negligent infliction of emotional distress may be breached when the defendant creates a foreseeable risk of physical injury to the plaintiff. The plaintiff usually must satisfy two requirements to prevail: - The plaintiff must be within the "zone of danger" - The plaintiff must suffer physical symptoms from the distress

Automobile Owner for Driver

The general rule is that an automobile owner is not vicariously liable for the tortious conduct of another person driving their automobile. In some jurisdictions, courts have developed exceptions to this rule to hold an automobile owner liable under specific circumstances. a. Family Car Doctrine In many states, the owner is liable for tortious conduct of immediate family or household members who are driving with the owner's express or implied permission. b. Permissive Use A number of states have now gone further by imposing liability on the owner for damage caused by anyone driving with the owner's consent. However, under a federal statute, rental car companies are not vicariously liable for the negligent accidents of their customers even if they do business in a "permissive use" state. c. Liability for Own Negligence—Negligent Entrustment An owner may be liable for their own negligence in entrusting the car to a driver. Some states have also imposed liability on the owner if they were present in the car at the time of the accident, on the theory that they could have prevented the negligent driving, and hence were negligent in not doing so. (This is not vicarious liability.) d. Driver Acting as Agent for Owner The car owner will be liable if the driver is acting as the owner's agent, for instance using the car to perform an errand for the owner.

Intentional Torts - Intent

The intent that is relevant for purposes of intentional torts is the intent to bring about the forbidden consequences that are the basis of the tort. The defendant does not need to intend the specific injury that results.

Trespass to Chattels - Two Types of Interference

The interference may either be an intermeddling (that is, directly damaging the chattel) or a dispossession (that is, depriving the plaintiff of their lawful right of possession of the chattel).

Assault - Damages Not Required

The plaintiff can recover nominal damages even if actual damages are not proved. Malicious conduct may permit recovery of punitive damages.

False Imprisonment - Damages Not Required

The plaintiff can recover nominal damages even if actual damages are not proved. Punitive damages may be recovered if the defendant acted maliciously.

Battery - Damages Not Required

The plaintiff can recover nominal damages even if actual damages aren't proved. The plaintiff may recover punitive damages for malicious conduct.

Trespass to Land - Damages Not Required

The plaintiff can recover without showing actual injury to the land.

Damages - Personal Injury

The plaintiff is to be compensated for all their damages (past, present, and prospective), both economic damages (such as medical expenses) and noneconomic damages (such as pain and suffering). A plaintiff suffering physical injury also may recover damages for any resulting emotional distress.

Assumption of the Risk

The plaintiff may be denied recovery if they assumed the risk of any damage caused by the defendant's act. The plaintiff must have: - Known of the risk and - Voluntarily proceeded in the face of the risk

Defamation - Statement Must Specifically Identify Plaintiff

The plaintiff must establish that a reasonable reader, listener, or viewer would understand that the defamatory statement referred to the plaintiff. a. Colloquium If the statement does not refer to the plaintiff on its face, extrinsic evidence may be offered to establish that the statement refers to the plaintiff. This is known as pleading "colloquium." b. Group Defamation - If the defamatory statement refers to all members of a small group, each member may establish that the state- ment specifically identifies them by alleging that they are a group member (in other words, every member of that small group wins!). - If the statement only refers to some members of a small group, the plaintiff can recover if a reasonable person would view the statement as referring to the plaintiff. - If the statement is about a large group, no member can prove that the statement specifically identifies them (in that case, no one wins!).

False Imprisonment - Awareness of Confinement

The plaintiff must know of the confinement or be harmed by it.

Nuisance - Damages

The plaintiff usually will be awarded damages.

NIED - Near Miss Cases - Plaintiff Must Be Within the "Zone of Danger"

The plaintiff will be considered to be within the zone of danger of the defendant's negligent acts when the plaintiff is sufficiently close to the defendant such that they are subject to a high risk of a physical impact.

Defenses - Consent

The plaintiff's consent to the defendant's conduct is a defense, but the majority view is that one cannot consent to a criminal act. Any consent fact pattern raises two questions: - Was there a valid consent? - Did the defendant stay within the boundaries of the consent?

Intentional Torts - Causation

The result must have been legally caused by the defendant's act or something set in motion by the defendant. Causation is satisfied if the defendant's conduct was a substantial factor in bringing about the injury. In most cases, causation will not be at issue when you are analyzing an intentional tort because it is usually obvious that the defendant's conduct was a substantial factor in causing the harm.

Invasion of Privacy

The right of privacy is a personal right and does not extend to members of a family, does not survive the death of the plaintiff, and is not assignable. The right of privacy is not applicable to corporations. The invasion of the plaintiff's interest in privacy must have been proximately caused by the defendant's conduct. The plaintiff need not plead and prove special damages. Emotional distress and mental anguish are sufficient damages. This tort includes four kinds of wrongs: - Appropriation of the plaintiff's picture or name - Intrusion on the plaintiff's affairs or seclusion - Publication of facts placing the plaintiff in a false light - Public disclosure of private facts about the plaintiff

Express Assumption of the Risk

The risk may be assumed by an express agreement.

Transferred Intent

The transferred intent doctrine applies when the defendant intends to commit a tort against one person but instead: -Commits a different tort against that person - Commits the same tort as intended but against a different person OR - Commits a different tort against a different person In such cases, the intent to commit a certain tort against one person is transferred to the tort actually committed or to the person actually injured for purposes of establishing a prima facie case.

Defamation - Damage to Plaintiff's Reputation

The type of damages the plaintiff must prove depends on the type of defamation (libel or slander) involved. Damages generally are presumed under the law of libel. In some slander cases, the plaintiff must prove that they suffered special damages—that is, they must have suffered some pecuniary loss in order to recover anything. But once the plaintiff has proved special damages, they may recover general damages as well. a. Libel Libel is a defamation that is embodied in permanent form.It is often a written or printed publication of defamatory language. Defamation in radio and television programs is treated by most courts today as libel. The plaintiff typically does not need to prove special damages to recover and general damages are presumed. (A minority of courts will presume general damages only if the statement is defamatory on its face (libel per se) and require proof of special damages if the statement requires reference to extrinsic facts to establish its defamatory nature (libel per quod).) b. Slander Slander is spoken defamation. The plaintiff must prove special damages, unless the defamation falls within one of the slander per se categories. These are defamatory statements that: - Adversely reflect on the plaintiff's business or profession - State that the plaintiff has committed a serious crime (this includes most common law crimes and is sometimes referred to as crimes involving "moral turpitude") - Impute that the plaintiff has engaged in serious sexual misconduct - State that the plaintiff has a loathsome disease

Theories of Products Liability

There are five theories of liability that a plaintiff may use: - Intent - Negligence - Implied warranties of merchantability and fitness for a particular purpose - Representation theories (express warranty and misrepresentation) - Strict liability If the question does not indicate what theory of liability the plaintiff is using, apply a strict liability theory because that is the easiest to prove.

Implied Warranties of Merchantability and Fitness

There are two warranties implied in every sale of goods that can serve as the basis for a suit by a buyer against a seller: 1.) Merchantability, which refers to whether the goods are of average acceptable quality and are generally fit for the ordinary purpose for which the goods are used. Goods that are likely to injure users even when handled proper- ly are quite obviously in breach of this warranty and will subject the seller(s) to liability. 2.) Fitness for a particular purpose, which arises when the seller knows or has reason to know the particular purpose for which the goods are required and that the buyer is rely- ing on the seller's skill and judgment in selecting the goods - Who Can Sue? Most courts no longer require vertical privity. Most states adopted a narrow version of the horizontal privity requirement. This means the buyer, family, household, and guests can sue for personal injuries. These warranties also generally apply to a lease of goods. - What Constitutes Breach? If the product fails to live up to either of the above standards, the warranty is breached and the defendant will be liable. The plaintiff does not have to prove any fault on the part of defendant. - Causation- Actual cause and proximate cause are handled as in ordinary negligence cases. - Damages - Personal injury and property damages, and purely economic loss, are recoverable. - Defenses - Defenses include assumption of risk (using a product while knowing of breach of warranty) and contributory negligence to the same extent as in strict liability cases. Failure to give notice of breach is a defense under the UCC (even in personal injury cases). - Effect of Disclaimers - Disclaimers are generally rejected in personal injury cases but upheld for economic loss.

Special Negligence Duties Based on Type of Defendant - Possessors of Land - Duty of Possessor to Those Off Premises

There generally is no duty to protect someone off the premises from natural conditions on the premises; however, there is a duty for unreasonably dangerous artificial conditions or structures abutting adjacent land. Also, one must carry on activities on the premises so as to avoid unreason- able risk of harm to others off the premises.

Intrusion on Plaintiff's Affairs or Seclusion

This claim forbids such acts as eavesdropping, spying, interception of phone calls or electronic communications, and other similar conduct. The act of prying or intruding must be highly offensive to a reasonable person. Furthermore, the thing into which there is an intrusion must be "private." Photographs taken in public places are not actionable.

IIED - Extreme and Outrageous Conduct

This is conduct that transcends all bounds of decency. Conduct that is not normally outrageous may become so if: - It is continuous in nature - It is committed by a certain type of defendant (common carriers or innkeepers may be liable even for mere "gross insults") OR - It is directed toward a certain type of plaintiff (children, elderly persons, someone who is pregnant, supersensitive adults if the sensitivities are known to defendant)

Factual Causation - Unascertainable Causes Approach

This test applies when there are two acts, only one of which causes injury, but it is not known which one. The burden of proof shifts to defendants, and each must show that his negligence is not the actual cause. [Summers v. Tice] Distinguish these last two tests: Under the merged causes approach, both parties caused the harm. Under the unascertainable causes approach, although both parties acted negligently, only one caused the harm.

Public Disclosure of Private Facts About Plaintiff

This wrong involves public disclosure of private information about the plaintiff (for example, matters of public record are not sufficient). The public disclosure must be highly offensive to a reasonable person of ordinary sensibilities. Liability may attach even though the actual statement is true. First Amendment limitations probably apply if the matter is of legitimate public interest.

General Considerations for Intentional Torts

To establish a prima facie case for any intentional tort, the plaintiff must prove: - An act by the defendant - Intent by the defendant - Causation of the result to the plaintiff from the defendant's act

Limitations on Use of Transferred Intent

Transferred intent may be invoked only if both the tort intended and the tort that results are one of the following: - Assault - Battery - False imprisonment - Trespass to land - Trespass to chattels Everyone is "capable" of intent. Incapacity is not a good defense. Thus, young children and persons who are mentally incompetent will be liable for their intentional torts.

Intentional Misrepresentation

To establish a prima facie case for intentional misrepresentation requires: - Misrepresentation of a material past or present fact - Scienter (when the defendant made the statement, they knew or believed it was false or that there was no basis for the statement) - Intent to induce the plaintiff to act or refrain from acting in reliance upon the misrepresentation - Causation (actual reliance) - Justifiable reliance - Damages (the plaintiff must suffer actual pecuniary loss) There are no defenses to intentional misrepresentation. a. No General Duty to Disclose There is no general duty to disclose a material fact, unless the defendant (1) stands in a fiduciary relationship to the plaintiff; (2) is selling real property and knows the plaintiff is unaware of, and cannot reasonably discover, material infor- mation about the transaction; or (3) has spoken and their utterance deceives the plaintiff. Physical concealment of a material fact may also constitute a misrepresentation. b. Third Party Reliance If a third party relies on the defendant's representation, the defendant will be liable if they could reasonably foresee that the third party would so rely. c. Reliance on Opinion Reliance generally is justifiable only on representations of fact (and the plaintiff is under no obligation to investigate the fact). Reliance on opinion is justifiable only if the defendant offering the opinion has a superior knowledge of the subject matter.

Interference with Business Relations

To establish a prima facie case for interference with business relations, the following elements must be proved: 1.) Existence of a valid contractual relationship between the plaintiff and a third party or valid business expectancy of the plaintiff 2.)The defendant's knowledge of the relationship or expectancy 3.) Intentional interference by the defendant inducing a breach or termination of the relationship or expectancy 4.) Damages

Private Nuisance - Unreasonable Interference

To establish unreasonable interference, required for nuisances based on intent or negligence, the severity of the inflicted injury must outweigh the utility of the defendant's conduct. In balancing these respective interests, courts take into account that every person is entitled to use their own land in a reasonable way, considering the neighborhood, land values, and existence of any alternative courses of conduct open to the defendant.

Products Liability - Elements for Strict Liability

To find liability under a strict liability theory, the plaintiff must show: 1.) The defendant is a merchant (in other words, a commercial supplier of the product) 2.) The product is defective 3.) The product was not substantially altered since leaving the defendant's control 4.) The plaintiff was making a foreseeable use of the product at the time of the injury

Self-Defense

When a person reasonably believes that they are being or are about to be attacked, they may use such force as is reasonably necessary to protect against injury. a. When Is Defense Available? The majority rule is that there is no duty to retreat. The modern trend imposes a duty to retreat before using deadly force if this can be done safely, unless the actor is in their home. Self-defense is not available to the initial aggressor unless the other party responds to the aggressor's nondeadly force by using deadly force. Self-defense may extend to third-party injuries (caused while the actor was defending themselves). An actor might be liable to a third person if they deliberately injured the third person in trying to protect themselves. b. Is Mistake Allowed? A reasonable mistake as to the existence of the danger is allowed. c. How Much Force May Be Used? One may use only that force that reasonably appears to be necessary to prevent the harm (including deadly force). If more force than is reasonably necessary is used, the defense is lost

Protective Privileges

When a question involves the defense of self, others, or property, ask the following three questions: - Is the privilege available? These privileges apply only for preventing the commission of a tort. Already committed torts do not qualify. - Is a mistake permissible as to whether the tort being defended against (battery, trespass, etc.) is actually being committed? - Was a proper amount of force used? Keep your parties clear. In questions involving these defenses, the conduct of the defendant was prompted by the commission or apparent commission of a tort by the plaintiff. That tort is not at issue, however; the issue is whether the defendant's response itself constituted a tort against the plaintiff (usually battery, tres- pass to land, or trespass to chattels) or instead was privileged by one of these defenses.

Breach of Duty in Negligence

When the defendant's conduct falls short of that level required by the applicable standard of care owed to the plaintiff, the defendant has breached their duty. Whether the duty of care is breached in an individual case is a question for the trier of fact. The plaintiff may use one of the following theories to show proof of the breach:

IIED - Causation in Bystander Cases

When the defendant's conduct is directed at a third person, and the plaintiff suffers severe emotional distress because of it, the plaintiff may recover by showing either the prima facie case elements of emotional distress or that (1) they were present when the injury occurred; (2) the distress resulted in bodily harm or the plaintiff is a close relative of the third person; and (3) the defendant knew these facts. Intentional infliction of emotional distress is a fallback tort position. Thus, if another alternative in your exam question is a tort that will also allow the plaintiff to recover, it should be chosen over this alternative.

Breach - Custom or Usage

When the standard of care is "reasonable prudence," evidence of the custom or usage of others may be used to establish how a reasonable person should have behaved under the circumstance. However, this evidence is not conclusive on the question of whether certain conduct amounted to negligence. For example, although certain behavior is custom in an industry, a court may find that the entire industry is acting negligently.

Assault - Effect of Words

Words alone are not enough. For the defendant to be liable, the words must be coupled with conduct. However, words can negate reasonable apprehension (for example, the defendant shakes their fist but states that they are not going to strike the plaintiff).

Wrongful Death

Wrongful death acts grant recovery for pecuniary injury resulting to the spouse and next of kin. A decedent's creditors have no claim against the amount awarded. Recovery is allowed only to the extent that the deceased could have recovered in an action had they lived. Hence, the decedent's contributory negligence reduces the wrongful death recovery in comparative negligence states. Similarly, a potential beneficiary's contributory negligence reduces their share of the recovery in comparative negligence states.

Tavernkeepers

a. Common Law No liability was imposed on vendors of intoxicating beverages for injuries resulting from the patron's intoxication, whether the injuries were sustained by the patron or by a third person as a result of the patron's conduct. b. Modern Law Many states, in order to avoid this common law rule, have enacted Dramshop Acts. Such acts usually create a cause of action in favor of any third person injured by the intoxicated patron. Several courts have imposed liability on tavern- keepers even in the absence of a Dramshop Act. This liability is based on ordinary negligence principles (the foreseeable risk of serving a minor or obviously intoxicated adult) rather than vicarious liability. When you see an MBE question on vicarious liability, recognizing whether the doctrine applies is only the first step in your analysis. Even if the defendant is not vicariously liable, the plaintiff may prevail if the defendant personally was negligent in supervising the person causing the injury or in entrusting a dangerous object to someone not equipped to handle it. Always look for this option among your answer choices.

Defenses to Defamation

a. Consent Consent is a complete defense. The rules relating to consent to intentional torts apply here. b. Truth In cases where the plaintiff is not obligated to prove falsity of the statement as part of their own case, the defendant may prove truth as a complete defense. c. Privilege Absolute Privilege—Can Never Be Lost The defendant may be protected by an absolute privilege for the following: - Communications between spouses - Remarks made during judicial proceedings, by legis-ators during proceedings (even if not related to the proceedings), by federal executive officials, in "compelled" broadcasts Qualified Privilege—Can Be Lost Through Abuse A qualified privilege arises only when there is a public interest in encouraging candor. The defendant bears the burden of proving that a privilege exists. Whether a speaker has a qualified privilege will be determined on a case-by-case basis. The qualified privilege may be lost if the statement is not within the scope of the privilege or it is shown that the speaker acted with actual malice. Some possible examples include: - References and recommendations - Reports of public hearings or meetings - Statements made to those who are to take official action (for example, statements made to a parole board about a prisoner) - Statements made to defend one's own actions, property, or reputation

Effect of Other Doctrines

a. Last Clear Chance Last clear chance is not used in comparative negligence juris- dictions. b. Assumption of Risk Express assumption of risk is a complete defense. Implied assumption of risk is analyzed as either: (1) a limitation on the duty owed to the plaintiff (meaning the defendant does not owe a duty to protect the plaintiff against known risks such as being hit by a foul ball at a baseball game); or, more commonly, (2) contributory negligence (meaning, the plaintiff unreasonably encountered a known risk, thereby reducing or barring their damages under the state's comparative negligence rules). c. Wanton and Willful Conduct The plaintiff's negligence will be taken into account in most states even though the defendant's conduct was "wanton and willful" or "reckless." However, the plaintiff's negligence is still no defense to intentional tortious conduct by the defendant.

Products Liability - Elements for Strict Liability, cont'd.

a. Only Merchants Can Be Held Liable Any commercial supplier can be held liable. - Does Not Extend to Casual Sellers - Casual sellers will not be held strictly liable. - Does Not Extend to Services - Strict products liability applies only to products. Even when a product is provided incident to a service (for example, blood during an operation), there is no strict liability. The plaintiff may, however, sue in negligence. - Includes CommercialLessors - Most states include commercial lessors. In other words, those who rent rather than sell products also can be held strictly liable. - Includes Entire Distribution - ChainCommercial suppliers include manufacturers, wholesalers, and retailers. Privity is not required—users, consumers, and bystanders can sue. In virtually all products liability actions, the fact that there was no contractual privity between the plaintiff and defendant will not prevent plaintiff from recovering. Nevertheless, it is still a favorite wrong choice in products liability exam questions based on negligence or strict liability theories. Remember that any foresee- able plaintiff, including a bystander, can sue any commercial supplier in the chain of distribution regardless of the absence of a contractual relationship between them. b. Types of Defects - Manufacturing Defects - If a product emerges from manufacturing different from and more dangerous than the products that were made properly, it has a manufacturing defect. The defendant will be liable if the plaintiff can show that the product failed to perform as safely as an ordinary consumer would expect (the defendant must anticipate reason- able misuse). (Note this also applies to defective food products.) - Design Defects - When all products of a line are the same but have dangerous propensities, they may be found to have a design defect. Manufacturers will not be held liable for some dangerous products (for example, knives) if the danger is apparent and there is no safer way to make the product. The plaintiff usually must show that the defendant could have made the product safer, without serious impact on the product's utility or price (the "feasible alternative" approach). ** Government Safety Standards - A product's noncompliance with government safety standards establishes that it is defective, while compliance with safety standards (including labeling requirements) is evidence—but not conclusive—that the product is not defective. - Information Defects - A product may be defective as a result of the manufacturer's failure to give adequate instructions or warnings as to the risks involved in using the product that may not be apparent to users. For prescription drugs and medical devices, warnings given to "learned intermediaries" (for example, the prescribing physician) will usually suffice in lieu of warnings to the patient. c. Existence of Defect When Product Left Defendant's Control The plaintiff must show that the product has not been significantly altered since it left the defendant's control. If the product moved through normal channels of distribution, it will be inferred that the product was not altered and that the defect existed when the product left the defendant's control. Remember a "foreseeable" use does not mean an "intended" or an "appropriate" use. Many products are commonly misused in ways that could be considered foreseeable. d. Misuse of Product May Be Foreseeable The plaintiff must have been making a foreseeable use of the product at the time of the injury. A defendant will not be held liable for dangers not foreseeable at the time of marketing. e. Nature of Damages Recoverable Physical injury or property damage must be shown. Recovery will be denied if the sole claim is for economic loss. f. Disclaimers Ineffective Disclaimers are irrelevant in strict liability cases if personal injury or property damages occur.

Satisfaction and Release

a. Satisfaction Recovery of full payment is a "satisfaction." Only one satisfaction is allowed. Until there is satisfaction, however, one may proceed against all jointly liable parties. b. Release In most states, a release of one tortfeasor does not discharge other tortfeasors unless it is expressly provided for in the release agreement.

Defense of Others

a. When Is Defense Available? One may use force to defend another when they reason- ably believe that the other person could have used force to defend themselves. b. Is Mistake Allowed? A reasonable mistake as to whether the other person is being attacked or has a right to defend themselves is permitted. c. How Much Force May Be Used? The defender may use as much force as they could have used in self-defense if they were the one threatened with the injury.

Defense of Property

a. When Is Defense Available? One may use reasonable force to prevent the commission of a tort against their real or personal property. A request to desist or leave must first be made unless it clearly would be futile or dangerous. The defense does not apply once the tort has been committed; however, one may use force in hot pursuit of another who has tortiously dispossessed the owner of their chattels because the tort is viewed as still in progress if the defendant is in the act of fleeing. Remember that this defense is not available against one with a privilege. Whenever an actor has a privilege to enter onto the land of another because of necessity, recapture of chattels, etc., that privilege will supersede the privilege of the land possessor to defend their property. b. Is Mistake Allowed? A reasonable mistake is allowed as to whether an intrusion has occurred or whether a request to desist is required. A mistake is not allowed as to whether the entrant has a privilege (for example, necessity) that supersedes the defense of property right, unless the entrant conducts the entry so as to lead the defendant to reasonably believe it is not privileged (such as by refusing to say what the necessity is). c. How Much Force May Be Used? Reasonable force may be used. However, one may not use force causing death or serious bodily harm unless the invasion of property also entails a serious threat of bodily harm. The same principle makes it impermissible to set deadly mechanical devices or traps (such as spring guns) to protect property. There is a common misperception that deadly force may be used to protect one's home. This is not strictly true. Many of the "home defense" cases are really self-defense cases. Thus, deadly force can only be used when a person, not just property, is threatened. d. Shoplifting Detentions A shopkeeper has a privilege to detain a suspected shoplifter for investigation. For the privilege to apply, the following conditions must be satisfied: - There must be a reasonable belief as to the fact of theft - The detention must be conducted in a reasonable manner and only nondeadly force can be used - The detention must be only for a reasonable period of time and only for the purpose of making an investigation

Affirmative Defenses

n contributory negligence states, contributory negligence is no defense if the plaintiff has failed to realize the danger or guard against it. It is a defense if the plaintiff knew of the danger and their unreasonable conduct was the very cause of the harm from the wild animal or abnormally dangerous activity or defective product. Assumption of the risk is a good defense to strict liability. Many comparative negligence states apply their comparative negligence rules to strict liability cases.