TEST CHARACTERISTICS

I. 34 Questions on MBE

II. Testable subject on MEE

III. 14 Torts to master

Know prima facie elements and defenses of each

TWO BAR EXAM TESTING AREAS

I. Tort Liability (Makes up 80-85% of the question)

Question 1: Can the p establish prima facie case requirements?
Question 2: Can D establish any affirmative defenses?
Task: To determine whether a “general consideration” has applicability to these facts, and if so, how. [e.g., vicarious liability, multiple D issues, and tort immunities]
a. Three Bar Exam Favorite Fact Patterns
1. i. The “Supersensitive” Plaintiff Fact Pattern
  1. RULE: p supersensitivities are irrelevant unless the D knows of them.
  2. Treat p as an “average person”
  3. ii. The “Incapacitated” Defendant Fact Pattern
    1. Includes young children, mental incompetents, very drunk persons
    2. RULE: Everyone is liable for intentional torts.
  4. iii. The “Transferred Intent” Fact Pattern
    1. Intent can be transferred from (1) person to person, and (2) tort to tort.
    2. Applicable to battery, assault, false imprisonment, trespass to land, and trespass to chattels.
b. Battery
1. i. Prima Facie Elements
  1. Harmful or offensive contact
    1. Offensive contact = unpermitted contact
    2. With Plaintiff’s person
      1. Doesn’t have to actually touch p’s body. Includes anything connected to p’s person.
      2. Construe very liberally!
c. Assault
1. i. Prima Facie Elements
  1. Apprehension
    1. Must be reasonable
    2. Doesn’t have to be fearful or intimidated, just some apprehension of immediate battery
    3. Actual ability irrelevant; its what p believes
    4. Of an immediate battery
      1. Must be immediate
      2. Words alone not enough, but if they’re coupled with conduct, it is.
      3. Words can also undue conduct and any reasonable apprehension
  2. ii. *Exam Tip: Battery wins over the assault (for MBE)
d. False Imprisonment
1. i. Prima facie elements
  1. Sufficient act of restraint
    1. Use common sense analysis – does it look sufficient?
    2. Threats are enough
    3. Inaction is enough if there has been an understanding that D would do something.
    4. Time period can be very short
    5. *Exam Observation: On MBE, ps regularly bring and win absurd lawsuits
    6. Knowledge – p must know of confinement at that time unless confinement actually injures p
    7. Bounded area
      1. Def: p’s freedom of movement in all directions is limited
      2. Favorite Bar Exam Issue: An area is not bounded if there is: (1) a reasonable means of escape, and (2) p knows of it.
Intentional Infliction of Emotional Distress(IIED) (*Bar exam favorite*)
1. i. Prima facie elements
  1. Outrageous conduct (must be extreme)
    1. Conduct that is continuous can be outrageous
    2. Type of p (child, elderly, pregnant woman, person w/ supersensitivities D knows of) could make outrageous
    3. Type of D (common carriers or innkeepers) could make outrageous
      1. i. SCREW THEM
      2. ii. Only applies to guests and passengers
    4. Damages
      1. Physical injury is not required BUT clear proof of substantial emotional distress is.
  2. ii. *Exam Fact Pattern Analysis: If another intentional tort, defamation, or privacy doesn’t work, consider this tort (Fallback Tort)
f. Trespass To Land
1. i. Prima facie elements
  1. Act of physical invasion by D
    1. Does not require p to personally go onto the land
    2. Does require that some physical object go onto the land.
    3. Of p’s land
      1. Includes, for a reasonable distance, the space going up and down from the surface
g. Trespass to Chattels & Conversion
1. i. Major Task: Determine which of the two you’re going with
  1. Some damage = Trespass to Chattels
  2. Lot of damage = Conversion
  3. ii. 2 Types of damage: physical and dispossession
  4. iii. Defenses
    1. Consent– 3 step analysis:
      1. Does p have capacity to consent?
      2. Was consent express or implied?
        
        i. Express: Not that easy – look for facts that disregard consent expressly given by a person of capacity. Look for facts relating to:
        
        Mistake
        
        Fraud
        
        Coercion
        
        ii. Implied: Two ways:
        
        Custom & Usage
        
        p’s Conduct
        
        Did D stay w/in the boundaries of any consent given?
    2. Self Defense, Defense of Others, & Defense of Property– 3 steps:
      1. Is timing requirement satisfied?
        
                                                                                                                                              i.      It must be now occurring or just about to occur
        
                                                                                                                                            ii.      If tort has already been committed, no defense.
        
                                                                                                                                          iii.      “Hot Pursuit” – Tort is still occurring if one is in “hot pursuit” of another who has wrongfully taken his/her chattel.
        
        Is defense test satisfied?
        
                                                                                                                                              i.      One need only have a reasonable belief that a tort is being committed
        
                                                                                                                                            ii.      *Bar Exam Favorite: Duty to Retreat Rule
        
        Gen Rule: No duty to retreat
        
        Modern Trend: Duty to retreat before using serious force if one (i) can do so safely, and (ii) is not in his/her own home
        
        For MBE, it will be in call of question; for essay, state both.
        
        Has D used the properamount of force to defend?
        
                                                                                                                                              i.      For self-defense and defense of others one may use reasonable force (including deadly force)
        
                                                                                                                                            ii.      For defense of property one may use reasonable force never to include force calculated to bring about serious bodily harm.
    3. Necessity– 2 steps:
      1. Make sure the tort defended against is a property tort
        
                                                                                                                                              i.      Can’t be used w/ any other tort
        
        Determine if it is a public or private necessity case
        
                                                                                                                                              i.      Public Necessity – for benefit of many and is an absolute, unlimited privilege. NO LIABILITY
        
                                                                                                                                            ii.      Private Necessity – for benefit of few and is a limited privilege; D liable for actual damages caused.
        
        *Exam Tip: Necessity prevails over defense of property.
Defamation
1. i. Common Law
  1. Prima facie elements
    1. Defamatory statement about this p
      1.                                                                                                                                       i.      What is a defamatory statement?
        
        Requires a defamatory statement of fact. Name calling not enough
        
                                                                                                                                            ii.      The interpretation process
        
        Used where statement is (i) not clearly defamatory on its face, and/or (ii) does not clearly refer to p on its face.
        
        If statement is not defamatory on its face, p must plead extrinsic facts (inducement) and establish the defamatory meaning from them by innuendo.
        
        If statement does not clearly refer to p on its face, p must establish colloquium to show he was the one intended.
        
        Publication
        
                                                                                                                                              i.      There must be communication to a third person
        
                                                                                                                                            ii.      The communication may be either intentionally or negligently made.
        
        If negligently made, it must be “reasonable foreseeable.”
        
                                                                                                                                          iii.      The third person must be capable of understanding the defamatory content.
        
        Injury to p’s reputation
        
                                                                                                                                              i.      Injury is presumed for every libel (in writing) and slander per se
        
                                                                                                                                            ii.      Injury not presumed for slander not per se. In this case, p must prove special damages (money damages) to show injury to reputation. [lost job – yes; friends won’t talk – no]
        
                                                                                                                                          iii.      Slander per se categories
        
        Business or profession
        
        Crime involving moral turpitude
        
        Loathsome disease (leprosy and venereal disease)
        
        Imputing unchastity to a woman (*MBE very fond of this*)
        
        Note: This tort redresses injury to reputation
  2. ii. First Amendment Interplay
    1. When is 1^stAmendment at issue?
      1. When the matter is of public concern.
    2. Prima facie evidence
      1. Defamatory statement
      2. Publication
      3. Injury to p’s reputation
      4. Falsity
        
        i. p must prove statement was false
        
        Fault
        
        i. First step is to determine if p is a public figure or a private person.
        
        “Public Figure” Plaintiff: must prove intentional or recklesstortious conduct (negligence not enough)
        
        “Malice Test” – Statement was made either (i) knowing it was false or (ii) w/ reckless disregard as to its truth or falsity.
        
        *Exam Note: If p a public figure, assume the matter is of public concern.
        
        “Private Person” Plaintiff: must prove only negligent tortious conduct.
        
        If p can prove malice, he should for only then will p be allowed to get presumed and punitive damages and not have to prove actual damage.
  3. iii. Defenses
    1. Consent (same as above)
    2. Truth (only for common law defamation)
    3. 3. Absolute and Qualified Privileges
      1. Absolute – CANNOT be lost
        
                                                                                                                                              i.      Communications between spouses
        
                                                                                                                                            ii.      3 Governmental branches: execute, legislative, judicial.
        
                                                                                                                                          iii.      *Bar Exam Tip: judicial branch is the favorite (anything said in course of litigation that is reasonably related to it will be absolutely privileged)
        
        Qualified – CAN be lost if abused (if you abuse it, you lose it)
        
                                                                                                                                              i.      No definitive test for when to give qualified privileges.
        
                                                                                                                                            ii.      *Favorite Bar Exam Fact Pattern: The “reference” fact pattern (e.g., letter from former professor or employer).
  4. i. 4 Separate and Distinct Tort “Branches”:
    1. (1) Appropriation by D of p’s Name or Picture for D’s Commercial Advantage
      1. “Commercial Advantage” – limited to promotion of goods or services.
    2. Note: For branches 2, 3, & 4, there is a prima facie case requirement that “defendant’s conduct must be objectionable to a reasonable person.”
    3. (2) Intrusion by D Into p’s Privacy or Seclusion
      1. Test: Common sense facts analysis. Ask: Would a reasonable person object to this kind of intrusion?
      2. D must get into the p’s own private corner of the world.
        
        i. However, remember continuous conduct can cause IIED.
    4. Note: For “publication” branches 3 and 4, publication requires wide dissemination of these statements.
    5. (3) Publication of Facts Placing p In a “False Light”(*Bar Favorite*)
      1. Where you have a false statement made with a false connotation.
      2. Ex – Ben Johnson “headline”/Magic Johnson “photo.”
      3. Note: “Malice” test applies where a matter is of “public concern.” If you encounter such a case on the exam: p should lose.
    6. (4) Publication of Private Facts About Plaintiff(*most popular of 4*)
      1. Note: No defamation or “False Light” b/c statement is true.
      2. Test: Common sense analysis. Ask: Would a reasonable person object to the publication (wide dissemination) of these facts?
      3. *Favorite Bar Exam Fact Pattern: p is photographed in a place generally open and available to the public. NOT a private fact.
      4. *Intimate Romantic Restaurant Hypo: NOT a private fact
  5. ii. Defenses
    1. Consent (same as above)
    2. Defamation Privileges (see above)
Misrepresentation
1. i. Intentional Misrepresentation(*Greater favorite*)
  1. Prima facie case
    1. Misrepresentation
      1. i. Must be a misstatement of fact, not an opinion unless rendered by someone w/ superior skill in the area
      2. ii. Silence is not enough. One must affirmatively misspeak (*Favorite misrepresentation question*)
      3. iii. Exceptions: (i) fiduciary relationship, (ii) real property sale where p cannot reasonably discover material facts (iii) D’s prior statements have misled p.
      4. Scienter (malice)
        
                                                                                                                                              i.      Test: statement was made either (i) knowing it was false, or (ii) with reckless disregard as to its truth or falsity.
        
        Intent to Induce Reliance
        
        Justifiable Reliance
        
                                                                                                                                              i.      *Favorite Fact Pattern: the “opinion” fact pattern
        
                                                                                                                                            ii.      Note: there is no duty to investigate to show reliance is justifiable.
        
        Causation
        
        Damages
    2. There are NO DEFENSES for intentional misrepresentation.
  2. ii. Negligent Misrepresentation
    1. Negligence replaces scienter
    2. Can only be used in a commercial setting.
Interference With Business Relations
1. i. Prima facie elements
  1. Valid Relationship Between p and Third Person
    1. Must be existing or prospective
    2. D’s knowledge of relationship
    3. Intentional Interference
      1. Negligence not enough
    4. Damage
  2. ii. Defenses
    1. Privileges
      1. Existence of a privilege is a question of fact, the most important facts are:
        
        i. D’s “persuasion” conduct (e.g., physical aggression v. mere oral suggestion)
        
        ii. Relationship between the parties facts
        
        p and D: If competitors, there is a “competitors” privilege to cover interferences w/ prospective relationships.
        
        D and third person: are they close relatives? Is D the third person’s lawyer, advisor, etc.?
        
        *Bar Tip: Much easier for p to win if interference is w/ an existing relationship.
a. Prima Facie Case
1. i. Duty
2. ii. Breach
3. iii. Causation
4. iv. Damages
DUTY (*Most tested of all negligence elements*)
1. i. Foreseeable Plaintiff
  1. Duties of care are only owed to foreseeable plaintiffs
  2. *Bar Exam Observation – the p will almost always be foreseeable
  3. Exception: Unforseeable Plaintiff Fact Pattern– negligent conduct (i.e., breach of a duty) directed towards clearly foreseeable p ultimately injures someone else. 2 Approaches:
    1. Andrews Approach: Everyone is foreseeable. If you breach duty of one person, and it injures another, you have breach duty to the other person (that person is foreseeable).
    2. Cardoza Approach (majority rule): p is foreseeable only if p is within the foreseeable zone of danger.
    3. *Exam Tip: For multistate, they will name the approach. If they don’t, go w/ Cardoza. For essay, talk about both approaches.
  4. ii. Standards of Care
    1. 2 Steps:
      1. Determine what standard applies
      2. Determine what the standard is
    2. Reasonable Person Standard
      1. This is an objective test.
      2. How it works:
        
                                                                                                                                              i.      We invent an “average person.”
        
                                                                                                                                            ii.      We assign this hypothetical person traits and characteristics
        
                                                                                                                                          iii.      We evaluate the reasonableness of D’s conduct not according to his/her own traits and characteristics, but rather those of our hypothetical person.
        
        Exception: D’s physical characteristics will be taken into account
        
        *Bar Exam Tip: The “Disabled Defendant Trick” – If D knows of his/her disability, he/she is supposed to act as a reasonable person w/ it would act.
    3. The Children Standard
      1. Prelim Note: Children under 4 are deemed incapable of negligence. However, everyone is liable for intentional torts!
      2. Standard: Child of like age, intelligence, and experience
        
        i. This is a subjective standard.
        
        Exception: Where the child is engaged in an adult activity, the reasonable person standard applies.
    4. The Professional Standard
      1. Standard: A reasonable professional in the same or similar communities.
      2. We do take into account specialists’ expertise.
    5. The Common Carrier and Innkeepers Standard
      1. Standard: They will be held liable for even slight negligence.
      2. *Bar Exam Tip: p needs to be a passenger or guest.
      3. Example: Crash btw car and bus. 2 ps – passenger and driver of car. There will be two different standards of care for the two ps.
    6. The Owner-Occupier (O/O) Standards
      1. 3 Steps:
        
                                                                                                                                              i.      Make sure D is an owner-occupier or in “privity” w/ one.
        
        Privity examples: family members, employees
        
                                                                                                                                            ii.      Determine if the injury occurred on or off the land.
        
        *Bar Exam Observation: injury will almost always occur on the land.
        
        *Bar Exam Tip: “Off-Land Injury Trick”– anytime you see an alternative which assigns a status to the injured party p, e.g., trespasser – discard it!!
        
        It’s a red herring. If off land injury, how can you have a trespasser?
        
                                                                                                                                          iii.      Assuming injury is on the land, determine if p an undiscovered trespasser (If so, there is NO DUTY owing him/her). If you have any other type of p, determine what caused the injury.
        
        Was it an activity (anything on the land) or a dangerous condition (i.e., hole in ground)?
        
        The Standards
        
                                                                                                                                              i.      The “Activity” Standard
        
        This is an ordinary negligence case and p’s status is irrelevant.
        
        The standard is the “reasonable person” standard.
        
                                                                                                                                            ii.      The “Dangerous Condition” Standards
        
        p’s status is relevant b/c owner-occupier is responsible for different types of dangerous conditions depending on the type of p.
        
        Undiscovered Trespasser – always loses.
        
        Discovered Trespasser
        
        Responsible for artificial conditions involving a risk of serious injury the o/o knows of.
        
        Licensee[On land for his/her own purpose – i.e., door-to-door salesman, social guest]
        
        Responsible for dangerous conditions the o/o knows of (all conditions)
        
        Invitee[On land for o/o purpose – e.g., business, public invitees]
        
        Responsible for dangerous conditions the o/o should know of (all conditions)
        
        o/o must make a reasonable inspection of the property for the benefit of invitees.
        
        *Bar Exam Tip: If in doubt as to whether p is a licensee or invitee, chose invitee.
        
        Three Bar Exam Favorite Issues
        
                                                                                                                                              i.      Discharge of Duties
        
        These duties may be discharged by either warning of or making safe the dangerous condition.
        
        *Exam Tip: Questions will always have injury, so there will likely never be no p making conditions safe. Will always be a warning.
        
                                                                                                                                            ii.      Very Obvious Dangerous Conditions
        
        No liability
        
                                                                                                                                          iii.      Infant Trespassers/Attractive Nuisance Doctrine
        
        *Favorite Test Item: The child must be able to show that he/she did not understand the risk involved.
        
        *Beloved Exam Red-Herring: The child must be able to show that the dangerous condition attracted him/her to it.
        
        This is not required, and is the wrong answer!
    7. 7. The Statutory Standards
      1. Note: Statutory standard always wins over reasonable person
      2. Test: In proving availability of statutory standard, p must show:
        
                                                                                                                                              i.      p within the protected class
        
                                                                                                                                            ii.      Statute is designed to prevent the type of harm p suffered.
        
        *Bar Exam Tip: Majority of time, the statute in the fact pattern was NOT designed to prevent the harm that occurred.
        
        Effect of statute being Inapplicable
        
                                                                                                                                              i.      Lawsuit is NOT over. Must apply a different standard of care.
        
        Effect of noncompliance within an applicable statute:
        
                                                                                                                                              i.      Results in negligence per se (use this term!)
        
                                                                                                                                            ii.      This means that there’s a conclusive presumption of negligent conduct on D’s part. This does NOT mean D is liable.
        
        Still have to prove D caused damages
        
                                                                                                                                          iii.      Exception: Excuses for Non-Compliance –
        
        Compliance would be more dangerous
        
        Compliance would be impossible
        
        Effect of compliance with an applicable statute
        
                                                                                                                                              i.      This arises as a defendant’s argument
        
                                                                                                                                            ii.      Can be introduced by the D, but this will NOT necessarily establish due care if the circumstances require more.
  5. iii. Miscellaneous Duty Problems
    1. Negligent Infliction of Emotional Distress (NIED)
      1. Two Requirements:
        
        i. p must suffer physical injury
        
        Shock can be enough
        
        Contrast w/ IIED: physical injury is not required.
        
        ii. p must be within the target zoneof D’s negligent conduct.
        
        *Modern Trend – p can recover if he is (i) a close relative and he (ii) perceives the injury.
        
        Note: For essay state both.
    2. Affirmative Duty to Act(*Very popular on Exam*)
      1. Rule: There is NO duty to act.
      2. Exceptions:
        
                                                                                                                                              i.      Special relationship between the parties
        
        Ex – owner/occupiers, business invitees, family member, employer/employee, innkeepers/guests, common carriers/passengers
        
                                                                                                                                            ii.      Duty to control third persons
        
        Must show:
        
        Ability to control third person
        
        Know or should know it’s required
        
                                                                                                                                          iii.      Assumption of duty to act by acting
        
                                                                                                                                          iv.      Plaintiff’s peril due to defendant’s negligence
        
        *Bar Exam Favorite Type Fact Pattern: The definitive “Bad Samaritan” fact pattern.
BREACH
1. i. Breach = Negligent Conduct
2. ii. To determine if there has been a breach, look to whether or not the D has met the standard of care.
3. iii. Res Ipsa Loquitur(*If breach tested, its usually on this*)
  1. *Bar Exam Tip: Res Ipsa is at issue when the fact pattern indicates that p does NOT have enough hard evidence to establish negligent conduct on D’s part.
  2. Requirements: Probability Inference Test
    1. Inference of Negligence – p must establish that the accident causing the injury would usually not happen unless someone was negligent.
    2. Negligent Attributable to Defendant- p must establish evidence connecting D w/ the negligence
      1. i. Most often done by showing the instrumentality causing the injury was w/in D’ exclusive control
      2. Plaintiff Not Contributorily Negligent
    3. Effect of Res Ipsa Loquitur
      1. p does NOT win
      2. p’s case will survive a motion for a directed verdict and will go to the jury with an inference of negligence
      3. Jury will then decide whether to accept or reject the inference.
      4. D not required to offer evidence on his own behalf.
CAUSATION (*2^ndMost tested negligence elements*)
1. i. Actual Causation(Cause in Fact) – 3 Tests:
  1. “But For” Test (Clear Majority)
    1. Question: But for defendant’s negligent conduct, would this injury have occurred?
    2. *Basic Bar Exam Result: If the response is negative for the p, you almost always DISMISS the case in D’s favor. NO CAUSATION.
    3. However, if the “But For” test is wrong, use another test…
    4. “Substantial Factor” Test (tested more frequently lately)
      1. Defendant’s conduct was a substantial factor in causing the injury
      2. Ex – Two hot-rodders simultaneously roar by a horse, horse goes wild and injures p. Either hot-rodder would have caused this result
    5. “Alternative Causes” Test(greater favorite of the 2)
      1. Two or more negligent defendants, but uncertainty as to which caused the injury
      2. Ex – Two hunter negligently fire guns in p’s direction. p is hit by pellet, but cannot tell which gun fired the shot.
  2. ii. Proximate Cause(Legal Cause)
    1. Proximate Causation – it’s a way for the jury to let a negligent D who actually caused an injury off based on lack of forseeability.
    2. Definitions:
      1. Direct Cause Case – uninterrupted chain of events between negligent act and injury
      2. Indirect Cause Case – Between negligent acts and injury there is an intervening force which combines w/ prior act to cause injury.
    3. 2 Rules of Proximate Cause
      1. Rule One: If the result was UNFORSEEABLE let D go!!!
      2. Rule Two: If the result was FORSEEABLEhold D liable.
        
        i. Exception for Rule 2: In an indirect cause case if the intervening force was an unforeseeable intentional tort or crime, D will prevail even thought the result was foreseeable.
    4. *Bar Exam Tips:
      1. Direct Cause Cases: 99% of time this will be regarded as a foreseeable result case.
      2. Egg-Shell Skull Plaintiff
        
        i. This is NOT an unforeseeable result case
        
        ii. It is only necessary that one be able to foresee an injury, not the extent of the injury. (use this language)
DAMAGES
1. i. Personal Injury: p is to be compensated for all his damages (past, present, and prospective), both special and general.
2. ii. Property Damage: Measure of damages is the reasonable cost of repair, or, if the property has been almost or completely destroyed, its fair market valueat the time of the accident.
  1. Take your p’s property as you find it (e.g., ’98 Riv v. Rolls Royce)
  2. iii. Punitive Damages: p may also be able to recover punitive damages if D’s conduct was “willful or wanton,” reckless, or malicious.
  3. iv. Nonrecoverable Items: Interest from date of damage in personal injury action; and attorney’s fees
  4. v. Note: There is a duty to mitigate
  5. vi. Collateral Source Rule: Damages not reduced b/c of payments from other sources (i.e., health insurance)
DEFENSES
1. i. Contributory Negligence
  1. Two Contributory Negligence Fact Patterns:
    1. Knowing Contributory Negligence/Implied Assumption of the Risk
      1.                                                                                                                                       i.      Fact Pattern: Doofus runs across street trying to beat negligently driven speeding car. He is struck and injured.
        
        No recovery b/c contributorily negligent & implied assumption of the risk.
        
                                                                                                                                            ii.      Two Part Test for Implied Assumption of the Risk
        
        One knew of the risk
        
        One voluntarily proceeded in the fact of it.
        
                                                                                                                                          iii.      *Bar Exam Trick: To know when both contributory negligence and implied assumption of risk are present, look for where the p (i) unreasonably (ii) voluntarily takes on a (iii) known risk.
        
        Unknowing Contributory Negligence
        
                                                                                                                                              i.      Fact Pattern: Doofus, while daydreaming, steps off curb into street and is blindsided by negligently driven car.
        
        No recovery – contributory negligence
    2. Note: For exam, need to know if known or unknown b/c we only talk about implied assumption of the risk w/ known contributory negligence.
    3. Exceptions to Implied Assumption of the Risk
      1. No Other Viable Alternative
      2. Emergency (Plaintiff’s or Another’s)
    4. Effect on Other Doctrines:
      1. a.      Effect of Contributory Neligence
        
                                                                                                                                              i.      At common law, p’s contributory negligence completely barred his right to recovery. Almost every state has abandoned this though.
        
        b.      Implied Assumption of the Risk
        
                                                                                                                                              i.      Present in a contributory negligence state.
        
                                                                                                                                            ii.      Not present in a comparative negligence state
        
        c.       Last Clear Chance Doctrine
        
                                                                                                                                              i.      Contributorily negligent p successfully contends that after his negligence, D still had the last clear chance to avoid the accident and, thus, contributory negligence should be disregarded a defense.
        
                                                                                                                                            ii.      Strict application of contributory negligence rules caused courts to develop this “escape” doctrine.
        
        d.      Defendant’s Tortious Conduct was “Reckless”
        
                                                                                                                                              i.      Contributory negligence state – contributory negligence will NOT be a good defense.
  2. ii. Comparative Negligence
    1. A substantial majority of states permit a contributorily negligent p to recover a percentage of his damages under some comparative negligence system.
    2. “Pure” Comparative Negligence
      1. Allows recovery no matter how great the p’s negligence is (0-100%)
    3. “Partial” Comparative Negligence
      1. Still bars p’s recovery if his negligence passes a threshold level
      2. Some states say p can recover if his negligence is less serious than the D’s (49% or less), and others allow recovery if p’s negligence was no more serious (50% or less).
    4. Note: Assume pure comparative state unless otherwise told that its partial.
    5. Effect on Other Doctrines:
      1. Implied Assumption of the Risk – abolished in comparative negligence jurisdictions
      2. Last Clear Chance – Not used in comparative negligence juris.
      3. D’s Tortious Conduct was “Reckless” – p’s contributory negligence will offset the amount of the award.
  3. iii. Assumption of the Risk
    1. p may be denied recovery if he assumed the risk of any damage caused by the D’s acts.
    2. Assumption may be expressed or implied
    3. To have assumed the risk, the p must have known of the risk or voluntarily assumed it.
    4. Implied Assumption of Risk
      1. Plaintiff must have known of the risk – implied where average person would appreciate the risk.
      2. Plaintiff must voluntarily go ahead in the face of the risk
      3. Some risks may not be assumed
Prima Facie Case
1. i. Existence of an absolute duty on the part of D to make safe;
2. ii. Breach of that duty
3. iii. The breach was the actual and proximate cause of p’s injury; and
4. iv. Damage to p’s person or property
Defenses for Contributory Negligence State
1. i. Knowing Contributory Negligence
  1. This is a complete defense and the result is that p recovers NOTHING
  2. ii. Unknowing Contributory Negligence
    1. This is NOT a defense and p recovers EVERYTHING
Defenses for Comparative Negligence State
1. i. Knowing & Unknowing Contributory Negligence
  1. Both can be asserted against the recovery.
  2. p recovers what they would recover under that state’s comparative negligence rules (i.e., pure v. partial)
Specific Situations
1. i. Animals
  1. Domestic Pets: One free bite rule for domestic pets. Liability for domestic pets only at second instance.
  2. Pets w/ Inherently Dangerous Propensities: Strict liability from the outset (result not changed if “tamed”)
  3. Knowledge required
  4. ii. Ultrahazardous Activities
    1. Activity is ultrahazardous if it involves a substantial risk of serious harm to person or property no matter how much care is exercised.
    2. Test:
      1. Activity must involve a risk of serious harm to person or property;
      2. Activity must be one that cannot be performed w/o risk of serious harm no matter how much care is taken; and
      3. It must not be a commonly engaged-in activity.
Extent of Liability
1. i. Duty owed only to foreseeable plaintiffs – persons to whom a reasonable person would have foreseen a risk of harm under the circumstances.
2. ii. Duty limited to “normally dangerous propensity – harm must result from the kind of danger to be anticipated from the dangerous animal or untrahazardous activity.
Threshold Inquiry – Who can you successfully hold liable for products liability?
1. i. Anyone as long as you can establish two requirements.
Two Requirements
1. i. Defect causing the injury must have existed at the time the product left that D’s control.
  1. There is an inference the defect existed when it left any given D’s control if since that time the product has move through normal channels of distribution.
  2. ii. Plaintiff needs a workable theory(look to call of question to determine what theory to apply)
    1. Negligence
      1. Focus is on D’s conduct
      2. Negligent conduct possibilities:
        
                                                                                                                                              i.      Negligence Design – when all products of a line are made identically according to manufacturing specifications, but have dangerous propensities.
        
                                                                                                                                            ii.      Manufacturing Defects – when a product emerges from mfg. process not only different from the other products, but also more dangerous than if it had been made the way it should have been.
        
                                                                                                                                          iii.      Negligent Warnings – must have clear and complete warnings of any dangers that may not be apparent to users
        
                                                                                                                                          iv.      Negligent Inspections
        
        Who can be a plaintiff?
        
                                                                                                                                              i.      Anyone who is within the foreseeable zone of risk including bystanders.
        
        Who can be the defendant (successfully sued)? (*Favorite Bar Question*)
        
                                                                                                                                              i.      Manufacturers – almost always
        
                                                                                                                                            ii.      Retailers/Wholesalers – almost never
        
                                                                                                                                          iii.      Note: Focus is on conduct – manufacturers are the ones who design, manufacture, warn, inspect, package.
    2. Strict Liability
      1. Focus is not on D’s conduct
      2. Test: An “unreasonable dangerous condition” (use this language)
      3. Who can be the p?
        
        i. Anyone who is within the foreseeable zone of risk including bystanders.
        
        Who can be the D?
        
        i. Everyone (don’t care about conduct here)
    3. Warranty Liability Theory
      1. It’s a strict liability theory.
      2. Warranty + Breach = Liability
Three Exam Favorites
1. i. Warnings
  1. Adequate warnings will generally insulate from liability
  2. ii. The Feasible Alternatives Approach(*Popular Test Item*)
    1. If one could have cured a defect for a minor amount of money relative to the risk involved he/she should have done it and a warning will not save them.
  3. iii. Product Use Incidental to Performance of Services(*Most tested*)
    1. The strict liability theories are unavailable.
    2. HYPO: during course of medical operation (service), defective blood is administered (incidental to service).
    3. *Bar Exam Note: You can still recover in tort; strict liability is just not available. If blood was negligently screened, you can still recover on negligence theory.
Remember Prah v. Maretti
Definitions
1. i. Private Nuisance*: Substantial, unreasonable interferences with one’s use and enjoyment of land.
2. ii. Public Nuisance: Act which unreasonably interferes with health, safety, or property rights of the community.
Proper Plaintiffs
1. i. For Private Nuisance Suits: Plaintiff must have either possession or the right to immediate possession
2. ii. For Public Nuisance Suits: Private person may recover only if he/she has suffered unique damage not suffered by the public.
The Standard
1. i. Its an objective test - The conduct must be objectionable to an average person.
*Exam Favorites
1. i. Nuisance involves the “balancing of competing interests” (write this)
2. ii. *Favorite Red Herring: “Plaintff cannot come to the nuisance and maintain the lawsuit”
  1. WRONG – you CAN come to the nuisance and maintain the lawsuit.
  2. Ex – move and build apartments by hog-feed cooperative.

II. General Considerations (15-20% of the question)

III. *Exam Note: Applicable to all tort cases of the tort involved.

STEPS FOR TORT QUESTIONS

I. Figure out which torts are involved

II. If multiple suits, figure out the torts involved for each suit (various parties involved)

III. Prima facie elements

IV. Defenses

V. General considerations

TESTING AREA ONE: TORT LIABILITY

I. Intentional Torts (6-8 questions)

II. Harm to Economic and Dignitary Interests

b. Invasion of Privacy

III. Negligence (½ of 34 questions and over ½ of tort essay questions)

IV. Strict Liability (3-4 Questions)

V. Products Liability

VI. Nuisance

TESTING AREA TWO: GENERAL CONSIDERATIONS FOR ALL TORT CASES

I. Vicarious Liability (Most popular)

Respondeat Superior
1. i. General Rule: Employers are liable for torts of employees committed within the scope of employment
2. ii. *Bar Exam Favorite: Intentional Torts
  1. General Rule: These are NOT w/in the scope of employment
  2. Exceptions:
    1. Force is authorized;
    2. Friction is generated by this type of employment;
    3. Employee is trying to further employer’s business.
    4. *Exam Tip: Over the years, the “winning” alterative has focused in on the exceptions
Automobile Owners/Drivers
1. i. General Rule: Auto owners are NOT vicariously liable for the torts of other drivers.
2. ii. Exceptions (*MBE*):
  1. “Family Car” Doctrine – household members using WITH permission
  2. “Permissive Use” Doctrine – anyone using WITH permission
Parents/Children
1. i. General Rule: Parents are NOT vicariously liable for the torts of their children
2. ii. Exception: Intentional torts up to limited dollar amount
*Important! Favorite Bar Exam Trick*
1. i. You must be able to recognize when the D will be vicariously liable and when they will be liable for their own negligence
2. ii. Ex – Allow a drunk buddy to borrow your car. You tell him to be careful, but an accident occurs. Are you liable? YES – but not vicariously liable!
Releases
1. i. Rule: A release does not release other tortfeasors unless it expressly does so.
Joint and Several Liability
1. i. Rule: Where multiple acts cause indivisible injury, each defendant will be potentially liable for the entire judgment amount.
2. ii. *Exam Tip: on the exam, you should assume that joint tortfeasors are jointly and severally liable.
Contribution and Indemnification
1. i. When Used: Where a D, b/c of joint and several liability, has paid more than his fair share of the judgment and wants the other Ds to contribute or indemnify.
2. ii. Contribution(50/50)
  1. Rule: Where Ds are more or less equally responsible, they will share the judgment equally.
  2. Note: (i) D from whom contribution is sought must also be liable. (ii) Not applicable to intentional torts.
  3. iii. Indemnification(0/100)
    1. Rule: Can get everything back from other defendant(s)
    2. Indemnification Grounds:
      1. Other D is a lot more responsible
      2. Vicarious liability (you can get it back from the actual tortfeasor)
      3. Strict liability in product cases (if retailer gets sued, it can get money back from the manufacturer)
  4. iv. Comparative Contribution(majority rule)
    1. Rule: Ds will spilt up judgment according to relative fault
    2. *Bar Favorite: A is 25% responsible and B is 75% responsible. p receives $100K judgment. How much do A and B each owe p?
      1. $100K – how much Ds owe p is governed by joint and several liability rules. If A pays all, can use contribution to get $75K back.
    3. *Bar Exam Tip: Comparative contribution effectively eliminate contribution and the first ground for indemnification.
These are derivative recoveries. This means you will stand in no better position than decedent would have stood if he/she had lived.
Intra-family – OUT
Charitable – OUT
Governmental – more or less OUT, but exists more at local levels
1. i. *Favorite Exam Issue: Governmental v. Proprietary Functions
  1. Rule: Immunity IS available for governmental functions; its NOT available for proprietary functions.
  2. Its proprietary if a private business normally would perform that certain function.

II. Parties – Multiple Defendant Issues

III. Survival and Wrongful Death

IV. Tort Immunities

Uncategorized

TORTS

I. 34 Questions on MBE

II. Testable subject on MEE

III. 14 Torts to master

I. Tort Liability (Makes up 80-85% of the question)

II. General Considerations (15-20% of the question)

III. *Exam Note: Applicable to all tort cases of the tort involved.

STEPS FOR TORT QUESTIONS

I. Figure out which torts are involved

II. If multiple suits, figure out the torts involved for each suit (various parties involved)

III. Prima facie elements

IV. Defenses

V. General considerations

TESTING AREA ONE: TORT LIABILITY

I. Intentional Torts (6-8 questions)

II. Harm to Economic and Dignitary Interests

b. Invasion of Privacy

III. Negligence (½ of 34 questions and over ½ of tort essay questions)

IV. Strict Liability (3-4 Questions)

V. Products Liability

VI. Nuisance

TESTING AREA TWO: GENERAL CONSIDERATIONS FOR ALL TORT CASES

I. Vicarious Liability (Most popular)

II. Parties – Multiple Defendant Issues

III. Survival and Wrongful Death

IV. Tort Immunities

Join Today

File Cabinet

Groups

Recent Posts

| Creative Commons Attribution-NonCommercial-ShareAlike 3.0 Unported License.

TORTS

I. 34 Questions on MBE

II. Testable subject on MEE

III. 14 Torts to master

I. Tort Liability (Makes up 80-85% of the question)

II. General Considerations (15-20% of the question)

III. *Exam Note: Applicable to all tort cases of the tort involved.

STEPS FOR TORT QUESTIONS

I. Figure out which torts are involved

II. If multiple suits, figure out the torts involved for each suit (various parties involved)

III. Prima facie elements

IV. Defenses

V. General considerations

TESTING AREA ONE: TORT LIABILITY

I. Intentional Torts (6-8 questions)

II. Harm to Economic and Dignitary Interests

b. Invasion of Privacy

III. Negligence (½ of 34 questions and over ½ of tort essay questions)

IV. Strict Liability (3-4 Questions)

V. Products Liability

VI. Nuisance

TESTING AREA TWO: GENERAL CONSIDERATIONS FOR ALL TORT CASES

I. Vicarious Liability (*Most popular*)

II. Parties – Multiple Defendant Issues

III. Survival and Wrongful Death

IV. Tort Immunities

Join Today

File Cabinet

Groups

Recent Posts

I. Vicarious Liability (Most popular)