Intentional Torts
Property
Liability
Negligence
Potpourri
100
What is a tort and what three elements are needed for a tort according to R2d
Hint, it's very basic
A tort is a civil wrong that causes harm to another person or their property
The three elements are act (tortious conduct), intent (requisite mental state), causation
100
What are the Three types of people that could enter your land? Briefly describe the duty owed to each.
I will applaud you for stating the majority and minority rule
Trespassers: refrain from willful, wanton, reckless, or intentional misconduct.
Invitee: Reasonable care to inspect, discovery dangerous conditions, and protect invitee from them; non-delegable duty
Licensee: Warn of concealed dangers that are known and could be obvious. No duty to inspect
Minority rule: Reasonable care in all circumstances. No duty to warn flagrant trespassers of dangers in any circumstance. They can die
100
Who may be a defendant in a strict products liability action?
Name a few people who are generally liable. Extra props if you think of the hard one.
The defendant must be in the business of selling or otherwise distributing products of the type that harmed the plaintiff, which includes the manufacturer of the product, its distributor, and its retail seller.
If the seller is a commercial supplier of the product, the seller is subject to strict liability for a defective product, even if the revenue from sales of the product is not a significant portion of its business. The seller is generally strictly liable even if the seller was not responsible for the defect in any way and even when the product is not purchased directly from the seller.
100
What are the elements of negligence?
Duty
Breach of duty
Causation (actual and proximate)
Damages
100
Explain the two types of negligence jurisdictions and what is the difference between them?
Extra yum yum point for stating the majority rule for one of them that makes things slightly more complicated.
Contributory negligence and Comparative negligence
Contributory negligence doctrine bars plaintiffs from collecting damages if they are found even 1% at fault.
Comparative negligence doctrine apportions fault based on percentage.
Majority rule: Modified comparative negligence. If you are over 50% at fault, you cannot recover. Jurisdiction split if it's 50% or 51%.
200
When does the doctrine of transferred intent apply towards third parties for IIED? Explain yourself.
Hint, there are two incidents
Related bystanders: An immediate family member of the victim is present at the time of the conduct and contemporaneously perceives the conduct
Defendant's purpose: The D's purpose in harming the individual was to cause emotional distress to the third party
200
What is the firefighter's rule?
An emergency professional, such as a police officer or firefighter, is barred from recovering damages from the party whose negligence caused the professional’s injury if the injury results from a risk inherent in the job.
200
When does an intervening event (an act or event occurring after the defendant’s tortious act and before the plaintiff’s injury) cut off a defendant's liability?
An intervening event that breaks the chain of proximate causation between the defendant’s tortious act and the plaintiff’s harm is a superseding cause. An unforeseeable intervening event is generally treated as a superseding cause, while a foreseeable intervening event generally is not.
200
In negligence actions, what standard of care applies to a professional?
A professional person (e.g., doctor, lawyer, or electrician) is expected to exhibit the same skill, knowledge, and care as an ordinary practitioner in the same community.
A specialist may be held to a higher standard than a general practitioner because of his superior knowledge.
Establishing negligence by a professional person generally requires expert testimony to establish both the applicable standard of care and the defendant’s deviation from that standard.
200
In negligence actions, what standard of care is imposed upon a child? And what is the unless... part of it.
The standard of care imposed upon a child is that of a reasonable child of similar age, intelligence, and experience.
Unless...A child engaged in a high-risk activity that is characteristically undertaken by adults, such as driving a car, is held to the same standard as an adult.
300
Explain the difference between the single-intent rule and the double-intent rule for battery.
Extra special point if you know which is the majority vs. minority rule
The Single-Intent rule (majority rule) holds D liable if D (i) intends to bring about the contact but D need not (ii) that the contact is harmful or offensive
The Double-Intent rule (minority rule) requires both!
300
What is an attractive nuisance?
A landowner can be liable for injuries to trespassing children if artificial condition poses unreasonable risk of serious bodily injury, children cannot appreciate the danger, burden of eliminating danger slight compared to risk of harm, the owner fails to exercise reasonable care to protect children.
300
What is the last clear chance doctrine?
In contributory-negligence jurisdictions, the plaintiff may mitigate the legal consequences of her own contributory negligence if she proves that the defendant had the last clear chance to avoid injuring the plaintiff but failed to do so.
The last clear chance doctrine has been abolished in most comparative-fault jurisdictions. Instead, the plaintiff's negligence is considered in determining the recovery to which the defendant is entitled.
300
What elements must be established for violation of a statute to constitute negligence per se?
I'll give you a "YAY" if you tell me the minority rule
1) A criminal or regulatory statute imposes a specific duty for protection of others;
2) The defendant neglects to perform the duty;
3) The plaintiff is in the class of people intended to be protected by the statute; and
4) The harm is of the type the statute was intended to protect against.
Note: In a minority of jurisdictions, violation of the statute is merely evidence of negligence (a rebuttable presumption as to duty and breach rather than a conclusive presumption).
300
What is the general standard of care in a negligence action?
What about for a person who is blind?
The general standard of care imposed is that of a that of a reasonably prudent person under the circumstances. The standard is an objective one. Under this standard, the defendant is presumed to have average mental abilities and the same knowledge as an average member of the community, but a defendant’s particular physical characteristics (e.g., blindness) are taken into account.
Note: If a defendant possesses special skills or knowledge, she must exercise her superior competence with reasonable attention and care.
400
What is the Merchant's privilege?
A merchant is privileged to use force against another for the purpose of (i) investigating, (ii) recapturing, or (iii) facilitating an arrest.
To be entitled to this privilege, the merchant must reasonably believe that the other has wrongfully (i) taken/is attempting to take merchandise; or (ii) failed to pay.
In addition, the merchant's use of force against the other must be (i) on or near the premises, (ii) reasonable, and (iii) for a reasonable time.
400
What is a public nuisance? What is does a private citizen have standing to pursue a public nuisance?
A public nuisance is an unreasonable interference with a right common to the general public.
A private citizen has a claim for public nuisance only if that citizen suffers harm that is different in kind from that suffered by members of the general public.
400
What is the doctrine of joint and several liability? How does it work? Who is she?
Under the doctrine of joint and several liability, each of two or more tortfeasors who is found liable for a single and indivisible harm to the plaintiff is subject to liability to the plaintiff for the entire harm. The plaintiff has the choice of collecting the entire judgment from one defendant, the entire judgment from another defendant, or portions of the judgment from various defendants, as long as the plaintiff’s entire recovery does not exceed the amount of the judgment.
Note: Always apply joint and several liability on the MBE unless the facts instruct you to apply a different test.
400
What test is applied by most courts when the conduct of two or more defendants may have contributed to a plaintiff’s indivisible injury? Explain!
A WHOO if you know the minority rule
Substantial-factor test: In cases in which the conduct of two or more defendants may have contributed to a plaintiff’s indivisible injury, each of which alone would have been a factual cause of that injury, the test applied by most courts is whether the defendant’s tortious conduct was a substantial factor in causing the plaintiff’s harm.
Note: Under the minority rule of the Third Restatement, each such cause or act is regarded as a factual cause of the harm. Together they are designated as “multiple sufficient causes.”
400
Name the three types of ways a product can be defective and describe them.
A product is defective when, at the time of the sale or distribution, it contains a:
i) Manufacturing defect: A deviation from what the manufacturer intended the product to be that causes harm to the plaintiff (the test is whether the product conforms to the defendant's product specifications);
ii) Design defect: A defect in the design of the product as determined under the consumer expectation test (unreasonably dangerous beyond the expectation of an ordinary user) and/or the risk-utility test (a reasonable alternative design that was economically feasible was available to the defendant and the failure to use that design rendered the product not reasonably safe); or
iii) Failure-to-warn defect: There is a foreseeable risk of harm, not obvious to an ordinary user of the product, which risk could have been reduced or avoided by providing reasonable instructions or warnings, rendering the product not reasonably safe.
500
When can Elyse, or a Private citizen, make a citizen's arrest for a felony?
A private citizen, or Elyse, may use reasonable force in the case of a felony if: (i) the felony has actually been committed; (ii) the arresting part has reasonable grounds to suspect that the person being arrested has committed the felony .
Being mistaken about identity or if whether a felony occurred is not reasonable
500
What is the definition of a conversion and what damages can the defendant recover?
The defendant intentionally commits an act depriving the plaintiff of possession of her chattel or interfering with the plaintiff’s chattel in a manner so serious as to deprive the plaintiff of the use of the chattel.
Note: The plaintiff may recover damages in the amount of the full value of the converted property at the time of the conversion. Alternatively, the plaintiff may bring an action for replevin to recover the chattel.
500
When will courts not enforce an exculpatory provision? Name three instances
i) Disclaiming liability for reckless or wanton misconduct or gross negligence;
ii) When there is a gross disparity of bargaining power between the parties;
iii) When the party seeking to apply the exculpatory provision offers services of great importance to the public that are a practical necessity for some members of the public such as medical services;
iv) If the exculpatory clause is subject to typical contractual defenses such as fraud or duress; or
v) When it is against public policy to enforce agreements that insulate people from the consequences of their own negligence.
500
What is the most important thing a plaintiff must prove to be awarded damages in a negligence action? Also what damages are not available?
No hints! I cannot change the order to make this less point and I'm tired
The plaintiff must prove actual physical harm (bodily harm, property damage) to be entitled to damages for negligence.
Nominal damages are not available.
500
What are the elements for intentional interference with a contract?
To establish a prima facie case for intentional interference with a contract, the plaintiff must prove that:
i) A valid contract existed between the plaintiff and a third party;
ii) The defendant knew of the contractual relationship;
iii) The defendant intentionally interfered with the contract, causing a breach; and
iv) The breach caused damages to the plaintiff.
