MBE TORTS

Frequently Tested Topics Intentional Torts: 1. Battery 2. Assault 3. False Imprisonment 4. IIED (no transferred intent) 5. Trespass to Land 6. Trespass to Chattel Negligence: 1. Duty (std. of care) 2. Breach 3. Causation a. Cause in fact b. Proximate cause 4. Damages 5. Defenses Palsgraf duty only to foreseeable Pls Rescuers per se foreseeable

I. Intentional Torts: a. Elements: 1) voluntary act; 2) *intent (desire OR substantial certainty), 3) causation (Ds act must cause dmgs.), 4) harm/dmgs, 5) no privilege/defense 1. Battery: 1. * Intent (to make contact); 2. Cause offensive or offensive contact; 3. Person or something closely related to person (pl. does not have to be aware of battery). Defenses: consent (must be effective/scope), self-defense (cannot be initial aggressor, reasonable force, some juris. Require retreat, defense of others (stand in their shoes), defense of prop. (must make demand that cease, never deadly) 2. Assault: 1. Intent * 2. To cause reasonable apprehension 3. of an immiment battery (Pl. must be aware & attempted battery sufficient) Defenses all battery defenses 3. False Imprisonment: 1. Intent* 2. Confinement 3. Against Pls Will 4. Pl. KNOWS of confinement OR is injured thereby. (Pl. must be aware of confinement OR suffer harm no duration requirement, but long duration may affect damages, reasonable means of escape does not include dangerous/embarrassing means). Defenses: same as battery, lawful arrest, shopkeepers privilege (probable cause)

4. IIED: 1. Intent* OR Recklessness 2. Extreme & outrageousness conduct 3. Causation 4. Severe emotional distress (offensive language no except common carriers or Pls w. known sensitivities, women, children, workplace insults with minorities, most states no longer require pl. to show phys. Inj.) 5. Trespass to Land: 1. Intent (simply to enter land) 2. Entry 3.Upon Pls Land (mistake NOT a defense, possessor of land has COA, nominal damages, where willful.wanton maybe punitive, liable for full extent of harm). Person not liable for negligent trespass unless he does dmg to the land. Damages: Ejectment (for trespass to land) 1. Proof of legal title 2. Proof of Pls rt to possession 3. Wrongful possession by D Damages = recovery of land + FMRV for use of land or benefit gained by possessor whichever greater. Defenses: consent, entry to reclaim Ds property, entry by necessity, entry to abate private or public nuisance 6. Trespass to Chattel: 1. Intent 2. Interference 3. Pls chattel or personal property 4. Harm/dmgs. (mistake not a defense, must be in actual possession or have rt. to possession @ time of COA). Liable for dmg or diminished value of chattel or Reas. Rental Val. Note: Intermeddling an interference w chattel that does not directly affect the Pls possession. (smearing mud on car, kicking dog). Defenses: consent or necessity (same with conversion) 7. Conversion: 1. Intent 2. Dominion AND control 3. Substantial Interference (Mistake no defense) liable for full value Dmgs. Replevin: (personal prop.) action for recovering sp. Chattels that have been wrongfully taken or detained. Any dmgs. suffered from the deprivation may also be recovered. Mkt value (chattel) @ time of deprivation mkt value @ time action commenced Defenses: POPCANS, Defenses to Consent: Mistake (fact or law); fraud; duress; incapacity; violation of crim. Statute Shopkeepers Privilege (Authority Defense): 1. Reasonable Suspicion 2. Reasonable Time 3. Reasonable Manner

II. Negligence 1. Duty: Did D have duty to P to conform to certain standard of conduct? To foreseeable Ps only. (foreseeable if within the zone of danger at the time of Ds negligence) Tradit rule: No affirm duty to take action to aid/protect P at risk of injury unless such action is taken. EXCEPTIONS: 1) D responsible for placing P in position, 2) once D takes action to aid must exercise due care, 3) special relationship btwn P and D and duty to control others (children) 4) duty to control 3d parties when special relationship. Mnemonics 2. Standards of Care (duty): Reasonable person Std. always state what D should have done. (no vol. intoxication or mental illness but will take emergency situations under consideration). OBJECTIVE STD. Judge Hs formula Defenses for Int. Torts Burden less than Risk of loss POPCANS=Privilege, defense of Stds. For Professionals (malpractice) - experts required unless obvious negligence. Specialists held to national std., Others, defense of Property, Consent, general std.- locality rule. Negligence Per Se/Statutory - supersedes CL, (lack of license NO), sets std. of care, 1. Is Pl.is the class of statute Authority Necessity Self-defense was designed to protect? 2. Harm suffered intended? Special Stds - auto guests auto driver is liable to non-paying guest only if the driver was reckless., owners and R-Reckless occupiers of land, innkeepers and common carriers highest duty I-Intentional Landlord Duty to Warn - Patent defects dangerous/natural conditions that should be apparent. NO DUTY TO N-Negligent WARN. If latent (no duty to inspect) and not reasonably apparent to T- LL has duty to warn of dangers and repair GGrossly Negligent them. Trespasser, undiscovered NO DUTY Special Duties: Trespasser, known or anticipated Ord. Care, duty to warn of dangerous conditions that are 1. Contractual duty known 2. Innkeepers and guest Licensee (w/ consent, not to confer $ benefit) No duty to inspect, ord. care, duty to warn of artificial 3. Common carriers and passengers dangerous conditions known to possessor. 4. School and pupils Invitee (held open to public, $ benefit), treated as licensee Ord. care, duty to inspect premises and make safe. when they exceed scope of invite Standards of Care: 3. Breach: Res Ipsa Loquitor (ONLY APPLIES TO NEGLIGENCE + BREACH) Pl. did NOT contribute to harm and 1. Reasonably Prudent Person Under D is responsible (or control) over the harm controlling instrumentality. the Same or Similar Circumstances 4. Causation: Cause in Fact But For Test OR Substantial Factor Test pl. has to show that more likely than not 2. Children (age, experience, D is the cause & pl. would not have been injured. Where mult. Ds Joint and Several Liability, Ybarra (smoke out intelligence except when adult med. context). Mkt Share Liability apportionment several liabilty conduct) 5. + Proximate Cause (must have this and cause and fact) duty to foreseeable pls, including eggshell. Ds conduct 3. Statutory/Negligence Per Se sets must be a proximate (legal) cause of injury. What is foreseeable rescuers, medical injuries. Superseding Causes: std. of care unforeseeable, intervening cause that breaks the chain of causation & thus relieves the org. tortfeasor of 4. Professionals (custom in industry)

further liability. Acts of God, suicide, crim. Acts or torts of 3rd persons, extra. Forms of neg. conduct 6. Damages: Pl. must prove actual damages. No nominals. Punitives/exemplary generally not allowed (but P&S is). No attys fees. Pl. has a duty to mitigate. (Avoidable Consequences Rule). Dont forget Collateral source rule. a. Compensatory (general): (make the Pl. whole) 1. Must be foreseeable 2. Must be reasonably certain b. Special dmgs: entitled to recover for past, present and future, but reduce future dmgs. to PV. ($ dmgs. easier to measure). Emotional Distress: 1. Zone of Danger 2. Suffered some accompanying physical manifestation of ED w/ 2 exceptions: 1. D transmits telegram announcing death of loved one and 2. D negligently mishandles a corpse. Bystander Actions: 1. Zone of danger 2. Physical manifestation 3. Close familial relationship.

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Defenses to Negligence: 1. Contributory Negligence (ANY fault by Pl. even 1%), complete bar to recovery, may be excused in an emergency or rescue, mental defects of D may be considered. Imputed contrib. only if vicarious liability. Pl not barred if 1. Ds conduct was willful, wanton or reckless. 2. Last Clear Chance if D had the last clear chance to avoid the danger created by Ps prior negligence. 2. Comparative Pure always collects something. Modified/Partial dmgs apportioned only if Ds resp. exceeds Pl. Pl. denied recovery if 50%+. 3. Assumption of Risk (express consent AND knew & appreciated the danger but chose the risk). Void against public policy (medicines) when dealing with a necessity, statute. May be only a partial bar depending on juris.

Defenses to Negligence 1. Contributory negligence 2. Comparative Negligence, assume Pure Comparative on Bar Exam 3. Assumption of Risk Injunctions 1. Pl. must specifically show that she is about to suffer irreparable injury for which $ dmgs not adequate. 2. Balance of hardships supports equitable relief 3. Public interest would not be disserviced by the injunction. 4. Pl. is likely to succeed on the merits

III. Strict LiabilityLiable regardless of whether D exercised due care. Abnormally dangerous act. firewks no longer. Possession of animals animal must have known dangerous propensitiesone bite rule. Assumption of Risk only defense under MBE. Contrib. can only reduce recovery not a complete defense. IV. Products Liability when a defective product injures an appropriate Pl.(any person injured while using the product) when only dmg. To product = breach of warranty only. Must show cause in-fact and proximate cause. Modern Trend let anyone recover even if not using. Proper D- all commercial suppliers @ all levels. Occasional sellers not strictly liable but may be sued for negligence. Generally providers of svcs, not held strictly liable if defective goods are supplied along with services. But restaurants Defamation subject to. Docs, dentists, blood bank NOT 1. A defamatory statement Defenses: assumption of risk (only if Pl. knew of defect), misuse of product, where D can show that his product was subsequently altered in an unforeseeable manner by someone in the chain of distribution or a 3rd personusually no liability to D. 2. Concerning the plaintiff/claimant 1. Manufacturing defect when product comes out in a condition that manuf. Did not intend or design. 3. Publication to 3rd party 2. Design Defect entire product line is defective. Comes out exactly as intended but something wrong w. it. 4. Harm/Damages (sometimes) 3. Warning Defect warning is inadequate or that there should be a warning. a. Consumer Expectation Test - product is more dangerous than would be contemplated by the ord. consumer Slander Per Se b. Danger-Utility Test/Risk Utility Balancing Test danger it threatens outweighs its utility to society. Danger y Crime of moral turpitude, v. Usefulness considering the availability & cost of safer alt. designs. (product usually defective if alt. y loathsome disease design could have reduced the danger @ about the same cost.) some products have so much social utility y incompatibility with they cannot be made safer. profession V. Products Liability on Warranty Theory see warranties handout y unchastity VI. Nusiance 1. Public Nuisance a. unreasonable interference b. right common to general public, to recover dmgs. in an ind. action for public nuisance the harm suffered must be different from that suffered by other members of the public. To maintain an action to sue in public nuisance must have: 1. Standing, rt, to recover dmgs, 3. Have authority as a public agency to represent the citizens. 2. Private Nuisance a. substantial and unreasonable interference b. plaintiffs use and enjoyment of land. Weigh reasonableness or unreasonableness of Ds conduct. May be intentional, negligent, or absolute. IV. Defamation 1. Defamatory msg lowers Pl in esteem of community and discourages third persons from associating. Person rcving msg must that it concerns P. D must at least be negligent with re. to publication. Types of Defamation: Libel: written or other permanent form, Slander; spoken, other non-permanent form, per se: Crime of moral turpitude, loathsome disease, incompatibility with profession, unchastity. Damages: 1. Special Dmgs pecuniary loss. Pl. must present specific evidence as to special dmgs, recover. Exceptions: Slander per se, and in some states all libel is actionable w/out proof of sp. Dmgs, but CL required sp. Dmgs. unless - Libel on its face (no innuendo or ext. knowledge is required to understand the stmts def. nature), libel per quod (innuendo or ext. knowledge is required to understand the stmts def. nature). * many juris. Still require evidence of sp. Dmgs for libel per quod. 2. General Dmgs jury generally allowed to presume. 3. Punitives must show actual malice (what may be recovered = all sp. dmgs, including lost customers and lost employment, dmg. To Ps reputation, Dmg to Ps feelings, including med bills to Ed, punitive, when 1st amnd. Issues only actual dmgs. and not punitive unless P proves actual malice. Defenses: 1. Truth, 2. Absolute Privileges: a. legislative proceeding, judicial proceedings, other official stmts. Of gov. officials, equal time broadcasts, and comml btwn spouses. 3. Common Law Qualified Privileges: stmts in Ds own interest, stmts in the interest of 3rd persons, stmts in the interest of the public, reports of public proceedings, and fair comment opinions. 4. Consent First Amendment Qualified Privileges: 1. Public Officials and well known Public Figures must prove malice (D knew stmt was false or acted in reckless disregard of truth. 2. Limited Public Figure ord. persons who voluntarily inject themselves into public controversy are treated as public figures if alleged defamation relates to their position in the controversy but are treated as private persons if defamation occurs in other matters. 3. Private Persons - must prove negligence with regard to truth when D is a member of the media, jurisdictions split when D is a private person. V. Invasion of Privacy Torts: A. Intrusion Upon Seclusion: 1. Intent 2. Intrusion Upon Seclusion (private matter) 3. Highly Offensive to a Reasonable Person 4. Causation Dmgs compensatory + punitive. B. Appropriation: 1. Appropriation 2.Nonconsensual use of a persons likeness, name, identity 3. For defs benefit C. Public Disclosure of Private Facts: 1. Public Disclosure 2. Of a private Fact 3. Which would be offensive and objectionable to the reasonable person 4. Which is not of legitimate public concern (newsworthiness) D. False Light: 1. Publication 2. Place Pl. in false light 3. offensive to the reasonable person 4. Knowledge of the falsity or reckless disregard (actual malice) Defenses: Truth (but not to appropriation or intrusion), Consent, Privilege (where Pl. is portrayed in a false lt. as to a matter of public interest, Pl. must prove malice. VI. Wrongful Institution of Legal Proceedings: 1. Malicious Prosecution institution of crim. Proceedings by D, done for an improper purpose and w.out probable cause, that terminates favorably to Pl. and causes Pl. dmg. Damgs = reputational harm + emotional distress. Law enforcement, My Strengths & Weaknesses prosecutors and judges absolutely privileged. 2. Wrongful Institution of Civil Proceedings - same as above but w civil trials. 3. Abuse of Process where D intentionally misuses either the crim. Or civil process for an alt. motive that results in dmg. To the Pl. VII. Economic Torts - 1. Intentional Misrepresentation (Fraud): 1. Intentional material misrepresentation, 2. Of past or present fact, 3. Made with scienter, 4. On which the Pl. justifiably relies. 2. Negligent Misrepresentation: many times not actionable if purely economic cannot recover unless there is a K or privity. 3. Interference w. K Relations: 1. That the D knows that there is a K btwn P and 3rd party, 2. That the D acts to have the K breached or harder to perform. 4. Interference with Prospective Economic Advantage: 1. D knew of the prospective economic advantage, 2. Acted to interfere for improper motives. 5. Injurious Falsehood (Trade Disparagement): Pl. must prove 1. False stmt. 2. Actual malice 3. Made to another (published) 4. Causing sp. economic loss to the Pl. VIII. Vicarious Liability employer/employee (respondeant superior w.in scope); independent K (no liability); joint enterprise (if w.in scope or course of enterprise); owner of auto/driver (Family Car Doctrine or permissive use doctrine); parent/child (not generally); bailor/bailee (no); tavernkeepers. Joint and Several Liability Contribution (goes to injured party) Indemnity (reimburses the tortfeasor) IX. Death of V or Tortfeasor: Majority Law Pls personal injuries, P & S does not survive, punitive do not survive tortfeasor. Survival Statutes: brought by the survivors (entirely statutory) Wrongful Death Statute: brought by the estate of the deceased Loss of Consortium: only by spouses (entirely statutory)

MBE TORTS