Torts MBE Tutorial

 27 torts questions
o ½ will cover negligence
o ½ from intentional torts, strict liability, defamation
 Start with call of question, then skim the answer choices
 MBE Torts Approach
o #1: Determine the cause of action or basis for why the case is being or should be
brought
o #2: Determine the identity of the P and D
o #3: Find the narrow issue the question is testing
 Appoint yourself the attorney for P or D
 Facts will connect to one element of the cause of action or a defense more than the others
 Think of a ladder – duty, breach, causation, damages are each a rung
o P must climb all rungs to be able to attach liability
o D will want to push P off the ladder – sooner he pushes her off, the better
 Negligence
o Duty
 D owes a duty to all foreseeable plaintiffs
 Look to see if question is testing duty owed (RPP or different standard –
standard, premises liability, professionals, children)
o Breach
 Test will ask: how should the court rule on the motion?
 DV – other side has no evidence for jury to find against him, all of the
facts are on my side
 Non-movant had to have zero evidence – look for ANY reasonable
argument or evidence. Only where there’s no evidence that D did
something unreasonable would you take it away from the jury
 Negligence per se – also used to test breach
 Is there a criminal statute designed to prevent the kind of harm
sustained by P?
 Is P within the class of persons protected?
 Statutes more specific duty will replace CL duty of care
 Negligence per se only establishes duty and breach – even if she
proves it, must still prove causation and damages
 Res ipsa
 Where it’s not clear how breach occurred – will only be issue if
there’s no direct evidence as to the circumstances of injury
 Inference of negligence in the air – facts won’t tell us how it
occurred
 Do facts tell you that someone must have been negligent?
 Defendant cannot prevail on a motion for directed verdict if P
establishes res ipsa
o Causation
 Proximate cause
  Ask whether P’s harm was a foreseeable consequence of the D’s
breach
 As long as intervening force is foreseeable, doesn’t cut off D’s
liability for his negligent conduct – original D is on the hook
o Is force something only a psychic could see?
 Medical malpractice is always foreseeable
o Damages
 Comparative negligence and contributory negligence
 Assume pure comparative negligence unless facts tell you that JX
applies contributory negligence or partial comparative negligence
 Pure comparative negligence – P can recover even if 99% at fault
 Reduce P’s recovery by % of P’s fault to figure out her reward
 Modified comparative negligence – P cannot recover if more than 50% at
fault
 Reduce P’s recovery by % of P’s fault to determine damage award
 Contributory negligence
 P cannot recover if at fault at all
 Where 2 or more D’s contribute to P’s injury, P can go after either D for
the full amount
 D’s can recover from each other, but that’s not P’s concern
 Joint and several liability applies UNLESS the Q tells us to assume
otherwise
 Intentional Torts
o Connect facts to specific elements of intentional tort
o Battery
 Intentional harmful or offensive contact to the P’s person
 Anything P is touching or holding = part of his person
 Transferred intent applies
o Assault
 The intentional creation of apprehension in the P of harmful or offensive
conduct (imminent battery)
 Apprehension doesn’t mean fear = means awareness of imminent conduct
 Apprehension must be reasonable from P’s perspective – facts make it
clear that a gun isn’t loaded
 Talk is cheap – need something more than words
 D’s words can negate actions
o False imprisonment
 Intent to confine to a bounded space
 Threats are sufficient for restraint, so is omission when there’s a prior
obligation to let them leave
 Time isn’t a factor
 P must be aware of confinement or suffer a physical harm to prevail
 Area of confinement doesn’t matter
 Is there a reasonable means of escape
o Trespass to land
  Intent to enter the land of another
 All that matters is that person intended to make entry onto land
 Distinguish trespass to nuisance
 Light, sound, odor aren’t physical invasions – instead, nuisance
o Trespass to chattels and conversion
 Chattels – intent to interfere with possession of another’s chattel
 Conversion – intent to interfere with chattel of another
 Conversion is more substantial interference than trespass to
chattels
 Major damage = conversion
 Remedy = FMV of chattel at time of conversion
o Intentional infliction of emotional distress
 Intent to engage in extreme/outrageous conduct causing extreme
emotional distress
 Not name calling
 D is aware of P’s hypersensitivity
 Physical manifestation not necessary to prove damages
 IIIED is only intentional tort where recklessness is enough for intent
o Defenses
 Consent
 P must have capacity to consent
 Scope of consent – has D exceeded?
 Self defense
 Timing – was there an imminent harm and reasonable belief for
defense of self and others
 Was an appropriate degree of force used?
o Deadly force not allowed for defense of property
 Necessity
 Only available for property torts (trespass to land, chattels,
conversion)
 Strict liability
o There must be a wild animal, an abnormally dangerous activity or a defective
product
 The whole point is to impose liability regardless of fault – doesn’t matter
if P was super careful
o Abnormally dangerous activities – explosives, blasting, toxic chemicals, nuclear
energy
o Wild animal – even if wild animal has been tamed, D will be held strictly liable
for P’s injuries flowing from the now wild animal
o Products liability – P can bring other causes of action to recover for injuries
sustained from defective product
 Negligence
 Breach of warranty
 Intentional tort
  But with strict liability, P is seeking to establish liability regardless of any
fault
o Elements for products liability
 Merchant – commercial supplier, not casual seller
 Defective product – manufacturing defect or design defect
 Defect in question existed at the time the product left the D’s control –
question of fact
 P made reasonably foreseeable use of product
 P suffered physical injury or property damages
o Read call first – is P bringing a negligence suit or strict liability
 ID parties first – can conclude that D wasn’t in chain of liability for
products liability
o Defenses to strict liability
 Contributory negligence JX – P’s contributory neg isn’t a defense unless P
knew and acted unreasonably in response to that knowledge
 Comparative negligence – applies to strict liability cases in most JXs; to
calculate damages, reduce P’s award by amount of his fault
 Foreseeable misuse is no defense
 Vicarious liability – tortious act of another
 Can impose through respondeat superior and Dramshop Act
 No vicarious liability for parent-child relationship or owner of
automobile
 * Think about if it’s possible to hold someone like an employer
liable for negligent hiring or supervision before reaching the matter
of vicarious liability (directly liable)
 If between 2 choices, pick the choice focusing on the defendant’s conduct, not the
plaintiff’s or third party or a statement about tort law which while true doesn’t really
apply

Torts Overview
 A tort is a civil wrong committed against another
 A tort may arise from:
o D’s intentional conduct
o D’s negligent conduct
o Conduct that creates liability in the absence of fault (strict liability)

Intentional Torts
Identify the Tort
 Battery
o A harmful or offensive contact with the P’s person intentionally caused by the D
 Person = things connected to person
 Offensive = P hasn’t expressly or impliedly consented
 Assault
o Intentional creation by the D of a reasonable apprehension of immediate
harmful or offensive contact to the P’s person
 o Words alone generally aren’t enough
 False imprisonment
o An intentional act or omission by the D that causes the P to be confined or
restrained to a bounded area
 Confinement/restraint =threats of force, false arrests or failure to provide
means of escape when under a duty to do so
 Intentional infliction of emotional distress
o Intentional extreme and outrageous conduct by D that causes P to suffer severe
emotional distress
 Doesn’t require physical injuries
 Trespass to land
o An intentional act by D that causes a physical invasion of P’s real property
 D didn’t have to intend to commit a trespass, only to do the act of entering
onto land
 Trespass to chattels
o An intentional act by the D that causes an interference with P’s right of
possession in a chattel, resulting in damages
 Usually involves damage to or dispossession of P’s chattel
 D only had to have intended to do the act that caused inference with
chattel
 If damage is serious, conversion may be better
 Conversion
o An intentional act by D that causes a serious interference with P’s right of
possession in a chattel
 D only had to intend to do the act that constitutes a conversion, doesn’t
have to intend a conversion
 Interference with chattel is so serious as to require the D to pay the full
value of the chattel (a forced sale)

Transferred Intent
 Intent will transfer from the intended tort to the committed tort or from the intended
victim to the actual victim
o Both intended tort and committed tort must be battery, assault, false
imprisonment, trespass to land or chattel
 “If D held the necessary intent with respect to person A, he will be held to have
committed an intentional tort against any other person who happens to be injured”
o Mistake doesn’t negate intent
o Fact that injury resulted to another than person intended doesn’t relieve liability

Apply Relevant Defenses

 Consent
o Can be expressed or implied
o P must have capacity to consent, D cannot exceed bounds of the consent
 Self-defense, defense of others, defense of property
 o D must reasonably believe that a tort is being or about to be committed against
himself, third person, or D’s property
o Only reasonable force may be used
 Deadly force never permitted to defend only property
o Shop keeper’s privilege = permits reasonable detention of someone SK
reasonably believes has shop lifted goods
 Necessity
o D whose property tort was justified by a public necessity has an absolute defense

Defamation and Other Harms to Economic and Dignitary Interests

Defamation
 Apply common law prima facie case
o Defamatory language concerning the P published to a third person that causes
damage to P’s reputation
 Apply constitutional rules if P is public official or if defamation involves matter of public
concern
o P must prove the statement was false
o Public official must prove “actual malice” = statement was made with knowledge
of its falsity or reckless disregard of its truth
o If private figure suing on matter of public concern:
 Show at least negligence as to truth or falsity and actual injury
 Applicable defenses
o Truth if constitutional requirement of proof of falsity doesn’t apply
o Absolute privilege for statements in certain proceedings
o Qualified privilege for matters in interest of publisher or recipient

Invasion of privacy
 Appropriation of P’s picture or name
o Unauthorized use of P’s picture/name for D’s commercial advantage
o Limited to advertisement or promotion of products/services
 Intrusion on P’s affairs or seclusion
o Act of prying/intruding on P’s private affairs or seclusion that would be highly
offensive to a reasonable person
 Publication of facts placing P in a false light
o Publication of facts about P putting her in a false light in the public eye in a way
that would be highly offensive to a RP
 Public disclosure of private facts about P
o Public disclosure of private info about the P such that the disclosure would be
highly offensive to a RP
 Defenses
o Consent
o Absolute/qualified privilege

Misrepresentation
 Intentional misrepresentation (fraud)
 o Misrepresentation by the D with scienter and intent to induce reliance, causation,
justifiable reliance, and damages
 Negligent misrepresentation
o Misrepresentation by D in a business or professional capacity, breach of duty to P,
causation, justifiable reliance, and damages

Interference with business relations

 A valid contractual relationship or business expectancy of the P and a third party, D’s
knowledge of the relationship, intentional inference by the D inducing a breach or
termination of the relationship, and damages

Malicious prosecution
 Initiating a criminal proceeding against the P ending in P’s favor, absence of probably
cause for the prosecution, improper purpose, and damages

Negligence
Elements of Prima Facie Case
 D owes a duty of care to confirm to a specific standard of conduct
 D breached that duty
 Breach of duty was the actual and proximate cause of P’s injury
 P suffered damages to person or property
Standards of care
 General standard of care is a reasonable person
 Professionals must exercise the knowledge and skill of a member of the profession in
good standing
 Children must conform to SOC of child of like age, education, intelligence and
experience
o Adult standard applies if child is engaged in an adult activity
 Landowner’s standard of care depends on status of the person inured on the property

Breach of duty
 Whether or not breach occurred is question for trier of fact
 Res ipsa loquitor
o The fact that an injury occurred may create an inference that the D breached his
duty

Causation
 Actual cause
o But for test = an act is the actual cause of an injury when it would not have
occurred but for the act
 Proximate cause
o What was I worried would happen with D’s conduct?  does it match what
actually happened?
o Limits liability for unforeseeable consequences of D’s actions
 o In indirect cause cases, an intervening force comes into motion after D’s negligent
act and combines with it to cause P’s injury
 Foreseeable intervening cause + foreseeable result = D liable
 D is liable where his negligence created a foreseeable risk that an
independent intervening cause/force would harm P
o “Here, the negligence of Thrillorama’s attendants in
failing to monitor the rope barrier created the foreseeable
risk of someone crossing the rope barrier”
 There are foreseeable intervening forces that won’t cut off D’s
liability that are natural responses or reactions to situations created
by D’s conduct (medical malpractice, subsequent injury/disease)
 Independent intervening forces may be foreseeable if D’s
negligence increased the risk of harm from those forces
o “Here, the fact that Thrillorama had attendants monitoring
the rope barrier to ensure that spectators didn’t cross that
indicates that failure to monitor the barrier would increase
the risk of someone crossing it and interfering with the
contest”
o In cases where a force came into motion after the time of the defendant's negligent
act and combined with the negligent act to cause injury to the plaintiff, this
intervening force will likely be foreseeable where the defendant's tortious conduct
increased the risk that this force would cause harm to the plaintiff
 Here, negligence by other drivers is foreseeable, and the defective latch
increased the risk that such negligence would cause harm to the motorist.
Hence, the truck driver's negligence would qualify as a foreseeable
intervening force that would not relieve the corporation from liability


Damages
 P must show actual harm or injury to complete the prima facie case

Defenses to Negligence
 Contributory negligence
 Comparative negligence
 Assumption of risk