MBE Rapid Fire - Torts

Voluntary act;

Intent to cause harm;

Causation; and

Resulting harm

If D intends to commit a tort but causes injury to a different victim OR commits a different tort than intended, original intent is transferred to the new victim/tort

Intentional act;

That causes harmful or offensive contact

Consent;

Self-defense;

Defense of property; and

Defense of others

Intentional act by D that creates;

P’s reasonable apprehension;

Of imminent harmful or offensive physical contact; and

Causation

D intends to confine or restrain P in a bounded area;

D actually confines or restrains P in bounded area; and

P knows or is harmed by confinement

A shopkeeper is not liable for false imprisonment if she:

Has a reasonable suspicion that P has stolen goods;

Uses reasonable force to detain P; and

Only detains P for a reasonable time to confirm/deny the suspicion

⚠️ Note: Only non-deadly force allowed. Shopkeeper can be liable for P’s injuries if actions exceed scope of privilege.

D acts intentionally or recklessly;

With extreme and outrageous conduct; and

Causes P severe emotional distress

D intentionally;

Physically invades P’s real property

D intentionally;

Intermeddles or uses;

P’s personal property (chattel); and

Causes damage or loss of use

D intentionally exercises dominion and control over P’s property so as to deprive them of its use

Consent (express & implied);

Self-defense;

Defense of others;

Defense of property;

Necessity; and

Recapture

D subjectively and reasonably believes harm is imminent; and

D uses proportional force to protect herself

D is entitled to defend another as long as D has a reasonable belief that the party being protected would be entitled to self-defense

Allows D to reasonably interefere with P’s property to avoid a substantially greater harm (e.g. D damages P’s fence to try and save P’s burning house)

D intentionally or recklessly harmed a third party;

P was present at the scene and witnessed the event;

P was closely related to victim (i.e. immediate family);

D knew P was present and closely related; and

P suffers extreme emotional distress as a result

⚠️ Note: P does not need to prove the above elements if D’s design or purpose was to cause severe emotional distress to P

True

Duty of care;

Breach;

Actual cause;

Proximate cause; and

Damages

D owes a duty of reasonable care (i.e. should act like a reasonably prudent person) to all foreseeable plaintiffs in the zone of harm

D must act as a reasonably prudent person would under the same circumstances with the same knowledge and capacity as a reasonable person

⭐️ Objective standard

When engaging in inherently dangerous adult activities (e.g. driving a car or motorcycle)

No, unless:

D has a special relationship with P;

D creates a need for rescue; or

D undertakes the rescue and P relies on the rescue attempt

Property owner must:

Exercise reasonable care on the property;

Warn or correct concealed dangers;

That are known or should be known;

In areas where P has access as a licensee

⚠️ Note: No duty to inspect for dangers

D is liable for child trespassers if:

D knows of a dangerous, artificial condition on the property;

That poses a risk of death or great bodily harm to children;

In a place that D knows or should know children are present;

Children are too young to appreciate the danger;

The risk of harm to children outweighs the burden of fixing the condition; and

D failed to remedy the dangerous condition

Child must act as a child of similar age, experience, and intelligence would.

⭐️ More subjective than RPP standard

Statute imposed duty;

D did not perform duty;

P is a member of a class that the statute was designed to protect; and

Injury caused by D is the type of injury that the statute was designed to protect against

Property owner must:

Inspect area where invitees have access;

For non-obvious, unknown dangers;

Warn the invitee of the dangers; and

Protect them from the dangers

⚠️ Note: Duty is non-delegable

Highest duty of care; liable for even the slightest negligence

Duty that does not absolve D of liability when contracted out to a third party (i.e. D is still ultimately liable)

Property owner must:

Reasonably carry out activities conducted on land; and

Correct or warn of dangerous artificial conditions on land that could cause death or serious bodily harm

None

When D fails to follow the appropriate standard of care

Injury would not occur without negligence;

D had exclusive control over instrumentality that caused the injury; and

P did not contribute to the injury

Factual cause of P's injuries.

Tests:

"But-for;"

Substantial factor; and

Burden-shifting test

Legal limitation on actual cause. Asks: "Is it legally fair to impose liability on D?"

Holds that P's injuries must be foreseeable and a direct consequence of D's actions (i.e. no intervening or superceding causes)

Unforeseeable, freakish, or bizarre intervening event that breaks the chain of causation between the initial wrongful act and the ultimate injury.

Negates proximate cause, thereby relieving D of any liability.

Event that happens after D's conduct that contributes to P's injuries (e.g. medical malpractice).

Can be either foreseeable or unforeseeable. If unforeseeable, D is relieved of liability.

Actual damage; i.e. actual harm to person or property

Nominal damages & damages for solely for economic harm are not sufficient

Medical expenses (past & future);

Pain and suffering (past & future);

Lost income/earnings (past & future);

Property damages (reasonable value of repair or fair market value at time of injury if irreparable)

Contributory Negligence;

Comparative Fault; and

Assumption of Risk

⚠️ Note: Assume comparative negligence applies unless otherwise stated by MBE

Pure comparative fault in which joint and several liability applies

Reduces P's recovery in proportion to P's fault

E.g. If P is 40% at fault, recovery will be reduced by 40%

P cannot be more than 50% at fault for the resulting injury or else recovery will be barred.

If P is less than 50% at fault, recovery is reduced by percentage P was at fault (same as pure comparative negligence)

D is liable for negligence if:

Third party has a reputation or record that shows propensity to be dangerous when in possession of such instrumentality;

D knew or should have known third party had this dangerous propensity;

D provided third party with the dangerous instrumentality, and

Third party injures P with dangerous instrumentality

D's negligence created foreseeable risk of harm to P;

P was in the zone of danger; and

P suffered emotional distress as a result

P is closely related to V;

P was present at the scene of the injury;

P witnessed or perceived the injury causing event; and

P suffered severe emotional distress as a result

D's activities imposes an absolute duty to make safe;

Causation

Damages

When P's injuries are:

Unprovoked; and

Caused by the animal's foreseeable dangerous propensities or characteristics

⚠️ Note: D is only liable for injuries caused by the animal's dangerous propensity. For example, if D owns a lion, and P is injured because she is allergic to the lion's hair, D will not be strictly liable.

Not of common usage; and

Creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors (i.e. cannot be performed safely no matter how much care is exercised)

D is a commercial manufacturer or supplier of the product;

Product was defective;

Defect existed when D sold the item;

P used the product in an intended or foreseeable way; and

Defect was an actual and proximate cause of P's injuries

Manufacturing defects;

Design defects; and

Warning defects

Unforeseeable user misuse/alteration/modification

Assumption of risk; or

Product changed significantly after it left D's control

⚠️ Note: whether or not defense is a complete bar will depend whether or not it is a comparative fault or contributory negligence jurisdiction. Make sure to read the question carefully.

P knew of the defect/danger;

P comprehended the consequences of the defect/danger; and

P voluntarily exposed himself to that danger

Yes, if:

Component itself was defective; or

Supplier substantially participated in the manfucturing of the product and participation was integral to the defect

Commercial supplier owes a duty of care to foreseeable users/P's (bystanders, etc);

Supplier breached duty by failing to reasonably inspect product;

Breach was actual and proximate cause of injury; and

P suffered physical damages or property damages (economic losses are insufficient)

Merchantability; and

Fitness for a particular purpose

D unreasonably interfered with a public right (typically right to health, safety, or property); and

P suffered distinct and different harm from the public at large

Substantial and unreasonable interference of P's use or enjoyment of her land

Nuisance:

No physical invasion required (can be light, smells, etc)

Continuous

Substantial interference

Trespass:

Physical invasion required

Does not need to be continuous

Does not need substantial interference

Defamatory statement;

Concerning P;

Published to a third party (either intentionally or negligently);

That damages P's reputation

** If matter is of public concern or P is a public figure, must also show →

D acted with actual malice

Defamatory statement that doesn't require proof of special damages.

Accuses P of either:

Misconduct that reflects poorly on P's profession;

Committing a crime involving moral turpitude;

Having a loathsome disease; or

Sexual misconduct or impropriety

Statement was false; and either:

Actual malice (public figure) or negligence (private figure)

Truth (absolute defense);

Consent; or

Privilege: absolute (complete defense) & qualified (can be revoked)

Intrusion upon seclusion;

Disclosure;

False light; and

Appropriation

Privilege (absolute or qualified);

Consent

⚠️ Truth is not a valid defense

Doctrine that holds an employer liable for the unintentional tortious acts of an employee committed within the scope of their employment

Holds employers primarily liable for the negligent hiring, supervision, entrustment, or retention of an employee

When the tort falls within the scope of employment. Can fall within the scope of employment if:

Force is inherent in the job (e.g. bouncer);

Employer authorizes force; or

Force is necessary to achieve employer's goals

Acts that:

Employee was hired to do or are part of her official duties; or

Benefit the employer

Each D is fully and independently liable for the full amount of damages owed

Ex. Both Max and Mat are jointly and severally liable for Brianne's injuries. Brianne's damages are $100,000. Brianne can collect $100,000 from Max or $100,000 from Mat, or $50,000 from Max and $50,000 from Mat (or another amount from each as long as the total doesn't exceed $100,000).

More info: Joint and Several Liability

If held jointly and severally liable, D can seek contribution from the other D's for their share of the damages

Ex. If Brianne sought $100,000 from Max, he could seek contribution from Mat for his share of the damages.

More info: Contribution

Contribution: Equitable apportionment, or sharing, among D's

Indemnification: Shifts the entire loss from the party who was found liable to the actual wrongdoer who was primarily responsible for the harm