MBE Torts

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1. 3 principles for Ignore Ps hypersensitivity - assume P is a normal person

intentional torts. No incapacity defenses
Transferred intent doctrine - D liable even if tort is different
than tort is at end then in the beginning. Also liable to
different person than person who was intended vic of tort.

2. Battery 1. P must show D committed harmful or offensive contact

2. contact w/ Ps person - includes anything the person is
holding, touching, or carrying

Harmful = literally inflicts bodily injury

Offensive Contact - unpermitted contact by person of or-
dinary sensitivity

3. Assault 1. P must show D placed P in a reasonable apprehension

2. that must be of an immediate battery

4. Apprehension knowledge a battery is coming/possible / apparent ability

creates reasonable apprehension
1. P must see it coming
2. no requirement to be afraid

5. Unloaded gun If knew gun unloaded no assault

problem - D No knowledge of loaded/unloaded it is reasonable appre-
threatens bat- hension
tery but cannot
complete; empty
threat, idle threat

6. Immediate Bat- 1. words alone lack immediacy, must be conduct (naked

tery - must have verbal threat never immediate enough)
a menacing ges- 2. words can negate conduct, and thus no cause of action
ture (i.e. display because no immediacy. (conditional words, promise action
of weapon or in the future)
force)

7. False Imprison- 1. D must commit act of restraint

ment 2. P must be confined in a bounded area

8.
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Threats suf- Omission/failure to act can be act of restraint if there was
ficient to a pre-existing duty between the parties (flight crew leaves
be restraint disabled passenger on plane)
- ordinary/rea- Act of restraint works only if P was aware or harmed by
sonable person it. If P unaware/not harmed no tort. If aware no minimum
standard time required.

9. Bounded Area If area not fully bounded must be aware of a reasonable

Requirement means of escape that can be reasonably discovered then
no claim. (if way out is dangerous, humiliating, hidden,
or disgusting it doesn't count as way out (not reasonable
means of escape))

10. IIED - sufficient 1. D must engage in extreme and outrageous conduct

to show reckless- 2. P must suffer severe emotional distress
ness

11. Extreme and Out- exceeds all bounds of human decency tolerated in a civi-
rageous Conduct lized society
Negative Rule - mere insults are not outrageous and can-
not trigger liability

12. Guidelines / Hall- 1. Conduct continuous or repetitive

marks of Outra- 2. D is a common carrier or an inn keeper (hotel or trans-
geousness portation company)
3. P is a member of a fragile class of persons (little chil-
dren, elderly, pregnant women)

Special Case for Outrageous Conduct - D has advance

knowledge of Ps particular weakness / special sensitivity
and attacks that weakness then it is outrageous.

13. Severe Emotion- 1. no particular evidence is required, no physical symp-

al Distress toms required.
2. severe distress is a judgment call; (look for text to negate
this element, i.e. P was mildly annoyed, briefly irritated,
momentarily flustered)

14. Trespass to Land 1. D commits physical invasion

2. of land
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15. Physical inva- 1. enter Ps property - D doesn't have to know of entry

sion - must be vo- 2. can throw something on land (tangible thing water, rock,
litional etc.)

Land = Ps interest not confined to surface but includes air

above and soil below (reasonable distance)

16. Trespass to Chat- Interference

tels and Conver- 1. Damage
sion - interfer- 2. Take it away / deprive of possession
ence w/ personal
property Degree of Interference
1. Big harm conversion
2. Slight harm trespass to chattel

17. Special Remedy Trespass to Chattel = cost of repair

for Conversion -
can get full mar- Mistake over ownership of item is not a defense
ket value for item,
conversion acts
like a forced sale

18. Defenses to In- Consent

tentional Torts Protective Privilege
Shopkeepers Privilege
Necessity

19. Consent defense to all intentional torts

Did P have legal capacity to give consent? Drunk / Men-
tally ill cannot give consent. (differ from developmentally
disabled person who has limited capacity to consent and
juvenile same thing; can consent to age appropriate or
intellectually appropriate things)

20. 2 types of con- 1. Express/Explicit Consent - P says in words that D may

sent behave in a way that might otherwise constitute a tort.

2. Implied Consent - 2 types

Implied Consent through custom or usage (i.e. playing
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team sports w/ contact element)
Ds reasonable interpretation of P objective conduct (Body
language consent) - must be reasonable interpretation

Exception to Express Consent - Consent obtained by

fraud or duress is invalid and won't bar a claim

General Point - all consent has a scope; D exceeds scope

D is liable. (i.e. Dr. operating on parts of body remote from
part supposed to be treated)

21. Protective Privi- 1. Self-Defense

lege - threat from 2. Defense of Property
P, and D reacts to 3. Defense of 3rd Person
that

22. When Available 1. Proper Timing - threat must be in progress or imminent

(i.e. is it too soon or is it too late); no preemption and no
revenge
2. Rule of accuracy - must have reasonable belief that
there is genuine or authentic threat. (can make an error
if it is a reasonable error)
3. Limit to reasonable or necessary force - rule of propor-
tionality

23. Ruel of propor- In life threatening situation can use deadly force, majority
tionality no duty to retreat (stand your ground doctrine). Cannot
use deadly force for defense of property (including deadly
mechanical devices)

*FL Distinction - presumed to have reasonable fear of

death/great bodily harm if someone enters your dwelling
or occupied vehicle (Burglar, carjacker)

24. Shopkeepers reasonable belief D is stealing can detain for reasonable

Privilege time and in reasonable manner

* FL Distinction - extends to farmers and mass transit.

25.
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Necessity De- 1. Public Necessity- arises when D commits property tort
fenses - only ap- in emergency to protect community (absolute defense, no
plies to property liability); i.e. fire
torts
2. Private Necessity - D commits property tort in emer-
gency to protect interest of Ds own. D acts out of self-in-
terest (partial defense)
a. D obligated to pay for any harm the D commits (com-
pensatory damages)
b. If no damage, your technical tort is ignored (no liability
for nominal/punitive damages)
c. D has privilege to enter and remain without asking and
cannot be evicted/ejected as long as emergency contin-
ues (privilege to take sanctuary)

26. Negligence - 1. Duty - P must show D owed a duty of care

2. Breach - P must show D didn't live up to duty
3. Causation - factual and proximate cause
4. Damage

27. Duty - legally im- 1. Which Others - foreseeable victims; unforeseeable vic-
posed obligation tims always lose (outside the zone of danger)
to take precau-
tions to avoid in- Exception - rescue, once something occurs rescuers will
juring others come to aid and are foreseeable victims under the duty
element.

28. How much pre- Exercise the degree of care or precaution by a hypothetical
caution for duty? reasonably prudent person acting under similar circum-
stances.

Reasonably Prudent Person - no objective characteristics,

the perfect careful and responsible person. An objective
standard of care, everyone held to same standard.

29. Exceptions to 1. Superior skill or knowledge (higher standard because

Reasonable Pru- added to it)
dent Person 2. D physical characteristics (i.e. blind, wheelchair) - rea-
sonably prudent person with these characteristics when
relevant to facts.
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30. Special Duties of Children

Care Professionals (malpractice)
Premise Liability
Statutory Standard of Care
Duty to act Affirmatively
NIED

31. 1. Children - very young children owe no duty of care (5 or under)

Children over 5 - owe the duty of care of similar age,
experience, and intelligence acting under similar circum-
stances (subjective).
If child engaged in adult activity then standard of care is
same as an adult (operating a motorized vehicle, boat,
farm equipment, ATV, snow mobile)

32. 2. Profession- Standard - care of average members of same profession

als (malpractice) providing similar professional services.
- learned pro-
fessions, require Key - uses real world metric comparison; expert
special skill and can come from anywhere in US to establish standard in
training to do profession
their work;
Informed Consent - duty to advise of risk of any recom-
mended procedure. Failure to advise and risk materializes
patient has cause of action related to that risk manifesta-
tion

33. 3. Premises Lia- Unknown Trespasser

bility Known Trespasser
Licensee
Invitee

34. Unknown Tres- no standard of care (unforeseeable victim)

passer

35. Known Trespass- 1. condition must be artificial

er (include an- 2. condition must be highly dangerous (no duty to moder-
ticipated tres- ately or slightly dangerous conditions)
passers, i.e. an- 3. condition must be concealed, hidden, out of sight, not
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ticipated tres- visible
passers) - duty 4. condition must be one property possessor knew of in
to protect from advance
only - no duty for
natural occurring Known man made death traps!
conditions

36. c. Licensee - en- 1. condition must be concealed condition

ter with permis- 2. condition must be something possessor knew about in
sion but do not advance
confer econom-
ic benefit to the
property owner
(i.e. social guest)
- duty to protect
from manmade
or artificial con-
ditions that are

37. d. Invitees - en- 1. condition must be concealed

ter w/ permis- 2. condition must be one property owner knew of in ad-
sion and confer vance or could discover through reasonable inspection (all
economic bene- reasonably knowable traps on the land)
fit to property
owner or prop-
erty is open to
the public at
large (customer
of business) -
duty to protect
from manmade
or artificial con-
ditions that are

38. *FL Distinction 1. No licensee category - social guests are invitees, all
other types of licensees are treated as discovered tres-
passers (i.e. door to door salesman)
2. No duty owed or liability to a person entering w/ intent
to commit a felony (burglar)

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39. * Firefighters/Po- not allowed to recover for injuries that are inherent risks
lice Officers of their job. (FL Distinction - abolished firefighter rule, and
treated as invitees)

40. * Child Trespass- heightened standard of care; given care of a reasonably

er (attractive nui- prudent person with regard to artificial conditions on the
sance doctrine) property (i.e. something draws child in) (FL Distinction -
child trespasser only recover if injured with thing that drew
them onto the land)

41. If owe duty to can satisfy duty by fixing problem or giving a warning
adult

42. 4. Statutory Stan- a. P must show that P is a member of class of persons that
dards of Care - the statute seeks to protect
class of person b. P must show the accident that occurred is within the
class of risk test class of risk intended to be protected by the statute
(Negligence Per * Can prove by guilty verdict in criminal case
Se) ** FL Distinction - traffic violation is evidence of negli-
gence, but not proof of guilt

Exception -
1. If statutory compliance would have been more danger-
ous then violation this doesn't apply.
2. If statutory compliance impossible under the circum-
stance

43. 5. Duty to act af- No duty to rescue a person in peril

firmatively - no Exception -
duty to act affir- 1. pre-existing legal relationship then duty triggered
matively; if do de- (i.e. common carrier/passenger, employer/employee, inn
cide to act, act keeper/guest)
like a reasonably 2. If D caused peril (not duty to rescue but duty to act
prudent person reasonably under the circumstances)

Good Samaritan - (CL liable for careless act during rescue

attempt)
*FL Distinction (has good Samaritan law) - rescuer not
liable unless rescuer is negligent

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44. 6. Negligent In- a. Near Miss Cases - P not physically injured, but a close
fliction of Emo- call (2 elements)
tion Distress 1. Ds negligence put P in zone of physical danger
2. Show subsequent physical manifestations of the dis-
tress (heart attack, miscarriage)
*FL Distinction - cannot recover w/out some physical im-
pact to body (trivial contact sufficient)

b. Bystander Case (injury to non-party) - P must show

1. P was close family member of 3rd person (spouse,
parent, child)
2. P must be present and see it happen (i.e. contempora-
neous witness)
*FL Distinction - don't have to see it happen as long as
arrival occurs while victim is still there

c. Business Relationship Cases (pre-existing business re-

lationship) - highly foreseeable that careless performance
will lead to distress
1. medical patient and medical laboratory - patient told
about illness patient doesn't have due to error/negligence
of lab
2. Customer and Funeral Parlor - careless work can lead
to emotional distress (i.e. lost remains, erroneously cre-
mated remains)
3. Customer and Dry Cleaner - lost/destroyed garment not
foreseeable to lead to emotional distress

45. Breach of Duty 1. Factual - what did D do wrong (did/failed to do)

2. Argument - explain why act unreasonable

46. Res Ipsa Lo- 1. Demonstrate accident is type normally associated w/

quitor - P cannot negligence
establish what D 2. Show negligence was probably due to someone in Ds
did wrong (gets position
you to jury) *FL Distinction - presumption that if rear ended in vehicle
presumption other vehicle is negligent.

47. Causation

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Factual
Proximate

48. Factual Causa- P must show connection between breach and injury
tion (but for test)
Special Case
Merged Causes (Substantial Factor Test) - 2 negligently
set fires merge and Ps house burned down - Whether
each breach contributed in a substantial way; both Ds
jointly liable

Multiple Ds w/ unascertainable cause - burden shifted to

Ds to explain why breach didn't harm P, if neither succeeds
then there is joint liability

49. Proximate Cause 1. intervening negligent medical treatment

(fairness) - P 2. intervening negligent rescue
must show that 3. intervening protection and reaction forces
liability is fair 4. subsequent disease or accident
and equitable
(i.e. foreseeabili-
ty)
Guidelines for
foreseeability -
time that pass-
es, geograph-
ic distance, and
whether routine
and normal or
bizarre and un-
usual

50. Eggshell Skull Take P as you find P (applies in every tort)

Doctrine

51. Defenses Each party assigned percentage of fault, and P recovery

reduced by Ps percentage fault
Comparative *FL Distinction (Pure Comparative) - always get some-
Negligence - P thing even if P majority at fault, but P who is intoxicated
not reasonably and more than 50% at fault will not recover.
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prudent, violated
statute, and
therefore failed
to exercise
proper care.

52. Strict Liability Domesticated Animals (pets and farm animals) - no strict
liability unless knowledge of vicious propensities (specific
P injured by ani- to specific pet, i.e. dog that bites people)
mal *FL Distinction - strictly liable for all dog bites regardless
of knowledge unless
1. trespasser to land cannot recover
2. immunize with sign "bad dog"

Wild Animals - strict liability always

53. Abnormally Dan- 1. must create foreseeable risk of serious harm even when
gerous Activities reasonable care is exercised.
- 2 part test 2. must be one which is uncommon where it is conducted

Common tested topics (safety precautions irrelevant)

a. any use of explosives
b. any use / transportation of highly toxic chemical or
biological material
c. anything involving nuclear energy or high dose radiation

54. Product Liability D is merchant

(Strict Liability of Product must be defective
Products) P must show product hasn't been altered since leaving
Ds control (presumption if traveled in ordinary channels of
distribution that it hasn't been altered
P must make foreseeable use at time of injury (i.e. stand-
ing on chairs)

55. 1. D is a merchant a. casual seller as D - occasionally deals in goods (i.e.

private party seller)
b. service providers - products collateral to services so not
merchant
c. commercial lessor - rents things as a routine business
(is a merchant, i.e. rental car company)
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d. party's up distribution chain - every party in chain is
merchant and is strictly liable

56. 2. Product must a. manufacturing defect - differs from others off assembly
be defective - 3 line that makes it more dangerous than consumers would
types of defect expect (consumer expectation test); departs from intend-
ed design; safety precautions are irrelevant

b. design defect - when risk associated w/ design outweigh

benefits of design that a reasonable person would not put
it on the marketplace; p must show better or hypothetical
design
1. must be safer than what was marketed
2. economically feasible
3. alternative design must be practical
*FL Distinction - doesn't use risk utility, test (consumer
expectation approach) - did design create product more
dangerous than consumers expect

c. Information Defect - product with residual risk not obvi-

ous to consumers it is defective without presence of warn-
ings. (warning must be adequate, i.e. sufficiently promi-
nent, understandable, doesn't explain how to avoid risk

57. *FL Distinctions 1. rebuttable presumption product is defective if doesn't

comply with Fed/State safety codes when sold
2. no seller of food can be held liable premised on fact for
gaining weight or suffer health consequences

58. Defenses to Comparative Responsibility (Same as Comparative

Strict Liability Negilgence)
Torts

59. Nuisance - D in- Test - Degree of Interference; Balancing Test; P will win
terferes with Ps if...balance of interest...
ability to use and
enjoy land to an
unreasonable de-
gree (i.e. incon-
sistent land use)
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60. Vicarious Liabili- 1. Employer/Employee - tort occurred within scope of em-

ty ployment (intentional torts outside scope of employment
unless being done to advance employer's interest)
2. Independent Contractor and Hiring Party - Hiring Party
not vicariously liable except if contractor hurts customer of
business
3. Car owner and car driver - generally not liable for driver
except if doing errand for owner (i.e. agent/principle)
4. Parent/Child - parents not liable for child conduct

61. Co-Defendants - 1. vicarious liability can recover from tortfeasor (indemni-

jury assigns per- fication)
centages (com- 2. Retailer can recover from manufacturer
parative contri- *FL Distinction - no joint and several liability (D only pays
bution) excep- their portion)
tions

62. Loss of Con- 1. loss of service - chores at home

sortium - un- 2. loss of society - companionship
injured spouse 3. loss of sex
gets cause of ac-
tion in own name

63. Defamation - fac- 1. P must show that D made a defamatory statement that
tual allegation specifically IDs P
that negatively Defamatory Statement - adversely affects Ps reputation in
affects a charac- the community
ter trait. (d is a Statement of Opinion - not defamatory because it is not
child molester) subject to the true false test unless it implies a factual
basis (i.e. in my opinion you'd be crazy to let D handle your
escrow money; I let him do it last year)
Mere name calling is not defamatory
P's name not required so long as P can be identified.
P must be alive when statement is made

2. Statement must be published

Publication - must share statement with others (at least
one other person); doesn't require intentional publication
(negligent publication sufficient)
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Every person who repeats defamatory statement is also
liable as a re-publisher

3. Damages (not always required)

64. Libel any defamation embodied in permanent form (written,

recorded, ESI), damage presumed

65. Slander - defam- a. statement related to Ps business or profession

atory statement b. statement that P committed serious crime (i.e. crime of
spoken or oral in honesty or violence)
nature c. statement that imputes unchastity to a woman (state-
1. Slander per se ment that an unmarried woman is sexually active)
- same damage d. statement that P suffers from a loathsome disease (i.e.
treatment as libel leprosy and venereal disease)
-

66. 2. Slander not per Requires proof of economic harm (i.e. got fired or didn't get
se hired, lost contract, lost revenues), not emotional injury
P cheating on his wife.

*FL Distinction - if D is a media corporation can never be

presumed damages, must show damages.

67. Affirmative De- 1. Consent - express or implied

fenses 2. Truth - D can show that statement is factually accurate
and that defeats the claim
3. Privilege

68. Privilege a. Absolute - based on ID of D

Communication between spouses - absolute privilege
Officers for 3 Branches of Government in performance
of their work - in judicial branch extends to lawyers and
witnesses; absolute privilege

b. Qualified - only when there is public interest in encour-

aging candor; case by case basis
Person must have reasonable and good faith basis for
making the statement, and

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Must confine self to relevant matters at hand
(References and Recommendations)

69. Matters of Pub- 1. P must prove falsity of the statement

lic Concern - 2. P must show degree of fault - statement made in other
news worthy, than good faith
widespread pub-
lic interest, hon-
esty and integri-
ty of public offi-
cials, athlete tak-
ing drugs, singer
ending record
contract, etc.

70. Degree of Fault Public Figure (with malice)- knowing false or reckless dis-
regard of its truth or falsity (reckless - no checking/verifi-
cation
Private figure in public concern case - D acted negligently
in making statement; failure to exercise reasonable care
to verify its truth

71. Invasion of Priva- 1. Appropriate - D uses P name/image for commercial

cy purpose
a. news worthiness exception (i.e. picture in newspaper)
b. applies to everyone in the world (doesn't have to be
famous person/athlete)

2. Intrusion - invasion of Ps seclusion that is highly offen-

sive to reasonable person (i.e. eavesdropping, wire taping)
Must be in place with reasonable expectation of privacy
(i.e. home, hotel room, car)

3. False Light - widespread dissemination of material false-

hood of P that would be highly offensive to average person
Can be both defamatory and false light (i.e. embezzle-
ment)
Arise out of accidental instead of intentional conduct
(stock photograph)

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*FL doesn't recognize false light

4. Disclosure - widespread dissemination of confidential

information that would be offensive to a reasonable person
(i.e. dissemination of medical records)
News worthy exception - investigative journalism
Fact must be truly confidential (i.e. partitioned information
not included)

72. Invasion of Priva- 1. Consent

cy Defenses 2. Defamation Privileges - available to defeat false light
and disclosure

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