MBE Negligence - Themis 2020
Who is a public official for the purposes of defamation?
A person who has substantial responsibility or control over a government office, including political candidate.
What damages are recoverable for strict products liability?
A plaintiff can recover for personal injury or property damage. Not purely economic loss.
What constitutional limitations are there for recovery of defamation?
A plaintiff of a statement involving a private individual and matter of public concern can recover only actual damages unless she shows actual malice. A plaintiff of a statement involving a private individual but NOT a matter of public concern may recover general damages, including presumed damages without proving actual malice.
What is a survival action? What damages are recoverable?
A survival action is brought by a representative of the decedent's estate on behalf of the decedent for claims that the decedent would have had at the time of the decedent's death. Claims include damages resulting from personal injury or property damage.
What is a wrongful birth claim? What may be recovered?
A wrongful birth claim is brought by the parents for the defendant's negligent failure to properly perform a contraceptive procedure or diagnose a congenital defect. Many states do permit recovery for the medical expenses of labor as well as for pain and suffering. If the child has a disability, parents may be able to recover damages for the additional medical expenses of caring for that child, and, in some states, recover for emotional distress.
What is a wrongful life claim? How is it limited?
A wrongful life claim is brought by a child for the defendant's negligent failure to properly perform a contraceptive procedure or diagnose a congenital defect. Only a few states permit such an action and even they limit the child's recovery to special damages.
What are the two components of causation?
Actual cause and proximate cause.
How is evidence of custom treated in determining breach?
Admissible, but not dispositive. For professionals (lawyers, doctors, accountants, electricians) custom is admissible and dispositive.
What is the procedural effect of Res Ipsa Loquitur?
Allows a case to go to the jury without direct evidence of breach/negligence. Allows the jury to infer negligence but does not demand it.
What is the "last clear chance" doctrine?
Allows a negligent plaintiff to recover even in a contributory negligence stated upon showing that the defendant had the last clear chance to avoid injuring the plaintiff but failed to do so.
What is a wrongful death action? What damages are recoverable?
An action brought by the decedent's spouse or representative to recover losses suffered by the spouse or representative as a result of the decedent's death. Wrongful death claims can include loss of economic support and loss of consortium.
How does the third restatement apply Res Ipsa Loquitur?
Applies the elements generously.
What is the bystander recovery rule and when does it apply?
Applies to a NIED claim that allows a bystander to recovery if he is (1) closely related to the person injured by the defendant (relational proximity); (2) was present at the scene of the injury (geographic proximity); and (3) personally observed the injury (temporal proximity).
When may a plaintiff recover for negligent infliction of emotional distress (NIED)?
Common law: Never for emotional distress alone, only when accompanied by a physical injury. Modern Approach (most jurisdictions require physical manifestation of distress) 1. Zone of Danger 2. Bystander recovery 3. Special Relationship
What are the two tests for a design defect?
Consumer expectation test: the product is defective in design if it is less safe than the ordinary consumer would expect. Risk-utility Test: the product is defective in design if the risks outweigh its benefits; must show a reasonable alternative design.
How can a defect be shown by the plaintiff when the product was destroyed?
Courts may allow proof of a defect by circumstantial evidence, especially when the defect caused the destruction of the product.
Are a third-party's criminal acts an intervening or superseding cause?
Criminal acts are generally superseding unless the occurrence of a criminal act was foreseeable.
What is the traditional and modern approach to the collateral source rule?
TRADITIONAL: Payments from outside sources are not credited against the liability of any tortfeasor and evidence of such is not admissible. MODERN: Most state have eliminated or substantially modified the rule to avoid double recovery.
What is a claim of abuse of process?
The D sets in motion a legal procedure in the proper from but has abused it to achieve some anterior motive. Conduct causes damages. Think of discovery abuses.
What is a claim of intrusion upon seclusion?
A invasion of privacy claim where defendant intrudes upon the plaintiff's private affairs, in a manner that is objectionable to a reasonable person.
What is a duty in negligence?
A legal obligation to act in a certain way. If a duty exists, what is the standard of care? (most often reasonable care).
What is respondeat superior?
The employer is held vicariously liable for the negligence of an employee, if it occurred within the scope of employment. The employer can also still be held liable for the employer's own negligence.
Is a defendant strictly liable for damages caused by a trespassing animal?
The owner of any animal is strictly liable for reasonably foreseeable damage caused by his animal while trespassing on another's land. Unless the pet is a household pet and owner DOES NOT have knowledge of it intruding another's property in a harmful way.
How is breach determined when a law or statute establishes a particular standard of care?
Violation of the law constitutes a breach; unexcused statutory violations constitute negligence per se.
When can a defendant be liable for defamation against a private individual on a matter of public concern?
When (1) the statement is false, and (2) the person who made the statement was negligent with respect to the falsehood.
What is a failure to warn claim?
When a company fails to warn of a foreseeable risk that is not obvious to an ordinary user.
When does the assumption of the risk defense apply?
When a party knowingly and willingly embraces a risk for some purpose of his own. Either express or implied. Think about consent for intentional torts.
What is comparative fault?
Where the plaintiff's negligence does not completely bar recovery; it decreases the plaintiff's ability to recover.
What is joint and several liability?
Where two or more defendants are liable for plaintiff's harm; each defendant can be held liable for the entire harm. The plaintiff can recover ALL of his damages from any negligent party.
What is the substantial factor test and when does it arise?
Whether the defendant's tortious conduct was a "substantial factor" in causing the harm. Arises when there are conceptual problems with causation due to multiple causes.
What are the three types of product defects afforded strict liability?
1. Manufacturing defect 2. Design defect 3. Failure to warn
In a personal injury claim, what categories are included within compensatory damages?
1. Medical expenses; 2. Lost income and reduced earning capacity; and 3. Pain and suffering, both past and future.
For what activities is the assumption of the risk implied?
1. Participants in and spectators of athletic events; 2. Unreasonably proceeding in the face of known, specific risk (can completely bar recovery or merely reduce for comparative fault).
When are physicians not required to inform the patient of a medical procedure's risks?
1. Risks are commonly known; 2. Patient is unconscious; 3. Patient waives/refuses the information; 4. Patient is incompetent; or 5. Patient would be harmed by disclosure.
What are the traditional elements of Res Ipsa Loquitur?
1. The accident would not have occurred without negligence 2. Within the exclusive control of the defendant; and 3. It was not due to any action on the part of the plaintiff.
When is a defendant strictly liable for a plaintiff's injuries related to a wild animal?
1. The animal is one that as a species or class is not customarily kept in the service of humankind; 2. The harm resulted from the animal's dangerous propensities; and 3. The harm occurred to a licensee or invitee.
What are the elements to a product defect claim?
1. The product was defective in manufacture, design, or failed to warn; 2. The defect existed when the product left the defendant's control; and 3. The defect caused the plaintiff's injury when the product was used in a foreseeable way.
What are the elements of statutory negligence per se?
1. The statute imposes a duty for the protection or benefit of others; 2. Defendant violates the statute; 3. Plaintiff must be in the class of people the statute intends to be protect; 4. The accident is of the type of harm that the statute intends to protect against; and 5. The harm was caused by the violation of the statute.
What defenses exist for defamation?
1. Truth (absolute defense as a truthful statement cannot be actionable as defamation) 2. Consent 3. Absolute Privilege 4. Conditional Privilege
In which scenarios does joint and several liability apply?
1. Two or more tortfeasors 2. Tortfeasors acting in concert 3. Alternative liability 4. Res Ipsa Loquitur used against multiple defendants 5. Both employer and employee are liable
When is language defamatory?
1. When it diminishes respect, esteem, or goodwill toward the plaintiff, or deters others from associating with the plaintiff; 2. The statement is false; and 3. The statement is not an opinion, unless the opinion implies a basis in fact.
When is there an affirmative duty to act?
1. When the duty was voluntarily assumed; 2. Actor placed plaintiff in danger; 3. Ability and actual authority to control plaintiff; or 4. Special relationship with plaintiff.
In what situations might a court not enforce exculpatory provisions in an agreement?
1. waiver disclaims liability for reckless or wanton misconduct; 2. There is a gross disparity of bargaining power; 3. Party seeking to enforce provision offers services of great importance to the public (like medical services); 4. The provision is subject to contract defenses (fraud/duress); and 5. The enforcement would be against public policy.
What is the standard for care for those with differing mental and emotional characteristics?
Same objective standard of reasonable care for one of average mental abilities and knowledge.
What is the scope of employment determined in a vicarious liability claim? What is a frolic and a detour?
Serving the employer's interest and under the employer's control. Detours are distinguished from frolics in that detours are minor deviations from the scope of employment where an employer is still liable. While a frolic is a major deviation from the scope of employment and results int he employer not being liable for associated negligence.
When is an entrant on land an invitee?
Someone who comes onto the land for a material or economic purpose. The land can be held open to the public or for a business purpose.
What is the standard of care for emergency situations?
Standard of care is that of a reasonable person under the same urgent circumstances.
In what cases have state governments not waived immunity from tort claims?
State governments generally have immunity for governmental functions but have waived immunity for proprietary functions.
What limitations exist on punitive damages?
Statute may limit punitive damage recovery and the US Supreme Court has held that as a matter of due process punitive damages must be within a single-digit ration of any compensatory damages.
What is the standard of care for bailors and bailees?
Common law: Bailor must warn a gratuitous bailee of known dangerous conditions. If bailee receives sole benefit, high duty of care. If bailor receives sole benefit, lesser duty for bailee.
How is express assumption of the risk analyzed by courts?
Two Questions 1. Is the waiver clear? 2. Is the waiver enforceable?
Who can recover for loss of consortium or companionship?
Typically the spouse, but recovery is limited to family members.
What are the defenses to statutory negligence per se?
- Excuse, when complying with the statute would be even more dangerous than violating the statute, - Compliance was impossible or an emergency justified violation of the statute, - Incapacity; - Exercised reasonable care in trying to comply; or - Statute's vagueness.
When will an automobile owner be liable for another's tortious conduct?
1) when the automobile owner negligently entrusts a vehicle to someone who is not in a position to care for it; 2) When the owner of an automobile may be vicariously liable for the tortious acts of any family member driving the car with permission; 3) The owner an automobile may vicariously liable for the tortious acts of anyone driving the car with permission.
What are the elements to a claim of intentional interference with business relations?
1. A valid contract between P and 3rd party 2. D knew of contractual relationship 3. D intentionally interfered, resulting in breach 4. Breach caused P's damages.
What are the three general categories of strict liability?
1. Abnormally dangerous activities; 2. Animals; and 3. Defective products.
What is an attractive nuisance?
1. An artificial condition in a place where children are likely to trespass; 2. the artificial condition poses an unreasonable risk of death or serious bodily harm; 3. The children, do not recognize the danger; 4. The benefit of the artificial condition is low compared to the risk of injury; and 5. The land possessor fails to exercise reasonable care.
How is the actual cause element satisfied?
1. But-for test 2. Substantial factor 3. Alternative causation; and 4. Concert in action.
What statements are considered slander per se?
1. Commission of a serious crime; 2. Unfitness for a trade or profession; 3. Having a loathsome disease; 4. Sever sexual misconduct.
What defenses are available for product strict liability claims?
1. Comparative fault; 2. Rarely contributory negligence; 3. Assumption of the risk; 4. A product misuse, modification, or alteration that was not foreseeable; 5. Substantial change in the product; 6. Compliance with governmental standards (admissible evidence but not conclusive except when federal preemption applies); 7. "State of the art" defense (can be evidence toward no defect or a total bar)
What are the elements of a defamation claim?
1. Defamatory statement; 2. Of or concerning the plaintiff; 3. Published to a third party who understood defamatory nature; and 4. Damage of the plaintiff's reputation.
When are independent contractors not solely liable for damage they negligently cause others?
1. Employer retains right of control over the way the contractor does the work; 2. When the tort involves a non-delegable duty (inherently dangerous, duties to public or specific plaintiff for certain types of work, and duty to keep a shopkeeper's premise safe. 3. When the negligence occurs within the apparent agency doctrine.
What are the elements of negligent misrepresentation?
1. False info provided 2. Resulting from negligence in preparing info 3. During the course of a business or profession 4. Causing justifiable reliance 5. Plaintiff has either a contractual relationship or known third party beneficiary.
What are the elements of intentional misrepresentation?
1. False representation 2. Scienter (knowledge or reckless disregard) 3. Intent to induce action 4. Causation 5. Justifiable reliance 6. Damages (actual, economic, pecuniary loss, no nominal)
What are the factors of strict liability for an abnormally dangerous activity?
1. Foreseeable and highly significant risk of harm regardless of due care; 2. Severity of resulting harm; 3. Appropriateness of the location; and 4. Whether it has great value to the community.
What claims exist for invasion of privacy (remember IFLAP)
1. Intrusion upon seclusion; 2. False light; 3. Appropriation of the right to publicity; and 4. Public disclosure of private facts.
What is "dram shop" liability?
A bar owner, bartender, and social host can be held liable for injuries caused when people drink too much alcohol and injure third parties.
What conditional privileges exist for defamation and when does it apply?
A conditional privilege applies when the statement is made in good faith pursuant to some duty or responsibility, including: 1. In the interest of the defendant (defending reputation); 2. In the interest of the recipient of the statement; or 3. Affecting some important public interest.
What is the learned intermediary rule for failure to warn claims? What is the exception?
A manufacturer of prescription drugs satisfy their obligation to warn if they disclose all risks/side-effects to the prescribing physicians. An exception is when the drugs are marketed directly to consumers.
What is a manufacturing defect?
A manufacturing defect is where the product deviated from its intended design and the individual product does not conform to the manufacturer's own specifications.
When can a member of a group bring an action for defamation?
A member of a group can only bring an action if the group is so small or the contact is such that the matter can reasonably be understood to refer to that member.
What is the standard of care for differing physical characteristics?
A modified standard - particular physical characteristics are taken into account; defendant is compared with a reasonably prudent person with like characteristics.
What is a claim of malicious prosecution?
A person intentionally and maliciously institutes or pursues a legal action for an improper purpose, without probable cause, and the action is dismissed in favor of the person against whom it was brought.
What is the scope of liability?
A person is liable for the risks that made her conduct negligent. The issue is whether the injury that occurred was within the scope of the defendant's breach.
What is the apparent agency doctrine?
An independent contractor (IC) will be treated as an employee if: 1) the injured person accepted the IC's services based on a reasonable belief that the IC was an employee, based on manifestations from the putative employer; and 2) the IC's negligence is a factual cause of harm to one who receives the services, and such harm is within the scope of liability.
What is the difference between an intervening cause and a superseding cause?
An intervening cause does not break the chain of causation while a superseding cause does. The determination is made but asking whether the injury is within the scope of what made the conduct negligent in the first place.
What's a claim of False Light?
An invasion of privacy claim where the defendant (1) makes public facts about the plaintiff, (2) that place the plaintiff in a false light, (3) which would be highly offensive to a reasonable person.
What is a claim of public disclosure of private facts?
An invasion of privacy claim where: (1) Defendant publicizes a matter concerning the private life of another; and (3) the matter publicized is: (a) highly offensive to a reasonable person; and (b) is not of legitimate concern to the public (difficult to prove).
What is a claim of appropriation of the right to publicity?
An invasion of privacy claim which is property-like where someone: (1) appropriates another's name or likeness; (2) for the defendant's advantage; (3) without consent; and (4) causing injury.
What is the cost benefit analysis for breach? (Learned Hand)
B < PL (Burden < Probability of harm * Severity of Loss)
When can business partner's be liable for the torts of other partners?
Business partners can be liable for the torts of other business partners committed within the scope of the business's purpose.
What is the principle of Res Ipsa Loquitur?
Circumstantial evidence of negligence is sufficient evidence of negligence. The thing speaks for itself.
Does comparative negligence bar recovery under strict liability?
Does not completely bar of recovery although some diminish recovery.
For some jurisdictions under the modern rule, what care is owed to flagrant trespassers?
Duty to not act in an intentional, willful, or wanton manner to cause physical harm.
What are the elements of negligence?
Duty, breach, causation, and damages
When are employers vicariously liable for the intentional torts of employees?
Employers are not liable for employee's intentional torts unless the employee's conduct was within the scope of employment.
When is an entrant on land a licensee?
Entering the land with express or implied permission. Social guests or allowing children to walk on property to school.
Do disclaimers, limitations, and waivers act as a defense to strict product liability?
Generally does not bar strict-liability claims for defective products.
Who qualifies as a public figure for the purposes of defamation?
Generally, a person of persuasive power and influence in society or a limited purpose public figure is a person who thrusts himself into a particular public controversy.
Can one's negligence be imputed to another? (husband driving, wife's sues 3rd for injuries)
Generally, not.
Do charitable organizations enjoy immunity from tort claims?
Historically yes but this immunity has been waived in most states.
How is a loss of chance of recovery treated under causation?
If a physician negligently reduces the plaintiff's chance of survival, then that plaintiff can recover for the lost chance of recovery.
What is modified comparative negligence?
If the plaintiff is MORE at fault than the defendant, then the plaintiff's recovery is barred. Some jurisdictions bar recovery even when plaintiff and defendant are equally at fault.
When does the constitution limit liability for defamatory statements?
If the subject of the statement is a public official or public figure, or if the subject is a private person but the statement is a matter of public concern.
Do government officials enjoy tort immunity for discretionary and ministerial functions?
Immunity applies to discretionary functions but not for ministerial functions.
Is a defendant strictly liable for injuries to a trespasser resulting from a wild animal?
No, although some jurisdictions have an exception for injuries caused by a vicious watchdog.
Are parents vicariously liable for their minor children's torts?
No, but a parent can be liable for their own negligence with respect to their children's conduct.
What standard of care is owed to off-premises victims?
Land possessor is generally not liable for injuries resulting from natural conditions (exception for trees in urban areas). For artificial conditions, duty is to prevent unreasonable risk of harm to persons not on the premises.
Is comparative fault a defense to a defendant's intentional tort?
No, however, but it can reduce recovery even when the defendant's conduct was intentional.
What is the difference between libel and slander?
Libel is a defamatory statement that is written, printed, or recorded for which the plaintiff may recover general damages (without proof of harm. Slander is a defamatory statement that is oral/spoken for which the plaintiff must prove special damages, unless slander per se is involved.
What standard of care is owed by the landlord when tenants are in possession of land?
Maintain safe common areas; warn of concealed dangers; and repair hazardous conditions.
How do comparative fault jurisdictions apply Res Ipsa Loquitur?
Many comparative-fault jurisdictions loosely apply the third element.
How is Res Ipsa Loquitur used in products liability?
Many courts ignore the exclusivity requirement when it is clear that the defect originated upstream of the package's wrapping.
What is the standard of care imposed on children?
Modified standard - reasonable child of similar age, intelligence and experience. The exception is for a child engaged in high-risk adult activities who are then held to objective standard for an adult.
What are the three types of claims for products liability?
Negligence, strict liability for defective products, and breach of warranty claims.
When can a plaintiff recover for pure economic loss with a negligence claim?
Never, a plaintiff who suffers only economic loss without any related personal injury or property damage cannot recover in negligence. Economic loss must be accompanied with personal injury or property damage.
Does contributory negligence bar recovery under strict liability?
No
What is the majority rule for foreseeability of harm?
No liability for an unforeseeable type of harm.
What is the scope of duty?
No liability to an unforeseeable plaintiff (this can go toward duty or proximate cause). MAJORITY: a duty is owed to a plaintiff only if the plaintiff is a member of the class of persons who might be foreseeably harmed by the conduct. MINORITY: Anytime conduct could harm someone, there is a duty to everyone. Foreseeability is a proximate cause issue.
What is the common standard of care in negligence?
Objective - Reasonably prudent person under the circumstances.
What is the standard of care for intoxicated persons?
Objective standard - held to the same standard as sober people unless the intoxication was involuntary.
When is immunity for tort claims granted between family members?
Only with core parenting activities does the immunity still apply.
What is the but-for test?
Plaintiff shows that BUT FOR defendant's negligence, plaintiff would have not suffered injury.
What is alternative causation?
Plaintiff's harm was caused by only one of a few defendants and each was negligent, and it cannot be determined which one caused the harm. Courts will shift the burden of proof to the defendants and impose joint and several liability on both unless one can show he did not cause the harm.
What is the modern approach (California) standard of care imposed on possessors of land?
Reasonable standard of care under the circumstances, with the status of the entrant as one of the relevant circumstances.
What is the general rule and alternative measure for recovery of property damage?
Recover the difference in the market value of the property before and after the injury, cost of repair, replacement value.
What is the scope of liability in an abnormally dangerous activity?
The defendant is liable for the harm that flows from the risk that made the activity abnormally dangerous.
What exceptions are there to the Federal Tort Claims act?
The federal government maintains immunity from certain enumerated torts, discretionary functions, and traditional governmental activities.
Who can sue and be sued in a product defect claim?
The plaintiff can be anyone foreseeably injured by a defective product, including purchasers, other users, and bystanders. No privity of contract necessary. A defendant is strictly liable if it sells the product when it is defective. Must be in the chain of distribution and in the business of selling.
What is the plaintiff's duty in regard to damages?
The plaintiff must take steps to mitigate damages. Can be considered a duty, but it acts more as a limitation on recovery.
What is the purpose of punitive damages and when may they be available?
The purpose of punitive damages is to punish and deter future conduct. These damages may be available if the defendant acted willfully, wantonly, recklessly, or with malice, or if an inherently malicious tort is involved.
What absolute privileges exist for defamation?
The speaker is completely immune from liability for defamation when the statement was made: 1. In the course of judicial proceedings; 2. In the course of legislative proceedings; 3. Between spouses; and 4. In a required publication by radio and TV.
What is the traditional approach for the standard of care imposed on possessors of land?
The standard of care depends on the status of the entrant. - Discovered trespassers are owed a duty to refrain from willful, wantonly, intentional, or reckless misconduct. - Undiscovered trespassers are owed no duty. - Anticipated trespassers must be warned of protected from hidden dangers. - Licensees are owed a duty to either make the property reasonably safe or warn licensees of concealed dangers (no duty to inspect). - Invitees are owed a duty of reasonable care and reasonable inspection.
How does foreseeability affect damages?
The type of damage must be foreseeable but the extent of the damage does not need to be foreseeable. Apply the thin-skull rule.
Does the federal government have immunity from tort claims?
Traditionally yes, but immunity has been waived by the Federal Torts Claim Act which allows the federal government to be sued for certain kinds of torts.
What are the purpose of actual (compensatory) damages?
To make the plaintiff whole again
What is the standard of care for common carriers and innkeepers?
Traditional Rule: Utmost care, highest duty of care consistent with the practical operation of the business. Many Courts Today: common carriers still held to a higher standard but innkeepers are liable only for ordinary negligence.
What customary evidence is used in determining breach by a physician?
Traditional Rule: physician custom in the same or similar locality Modern Trend: national standard Informed Consent: patients must give informed consent.
What is vicarious liability?
When one person is held liable for another person's negligence.
When does a special relationship allow for the recovery of an NIED claim?
When the emotional distress is a result of the mishandling of a corpse; or negligent medical information.
When is a defendant strictly liable for injuries resulting from a domestic animal?
When the owner knows the animal has dangerous propensities. Or falls under a dog-bite statute.
When can a defendant be liable for defamation against a public official/figure?
When the person who made the statement either knew that it was false or acted with reckless disregard for the truth (called the "actual malice" standard).
What is contributory negligence?
When the plaintiff's negligence contributed to her injury, that negligence completely bars the plaintiff's recovery.
What is concert of action?
When two or more tortfeasors were acting together collectively and that causes the plaintiff's harm. All defendants will be jointly and severally liable.
What is the standard of care for automobile drivers?
With guests/friends in the car: traditionally liable only for grossly negligent, wanton, or willful misconduct. Majority: A general duty of reasonable care standard to the driver.
Does repeating another's statement expose one to defamation liability?
Yes, a person who repeats a defamatory statement may be liable for defamation. An exception to this is for internet service providers and platforms which are not publishers/repeaters for the purposes of defamation.
Is assumption of the risk a bar to recovery under strict liability?
Yes, assumption of the risk is a complete bar to recovery.
Are rescuers foreseeable plaintiffs?
Yes, danger invites rescue.
What is the Zone of Danger theory and when does it apply?
Zone of danger applies for a NIED claim where (1) the plaintiff was within the "zone of danger" of the threatened physical impact; and (2) the threat of physical impact caused emotional distress.
