mbe torts

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what kinds of torts may invoke transferred intent?: assault; battery; false imprisonment; trespass to land; or trespass to chattels.
what are the elements for tortious battery?: 1) harmful or offensive contact;
2) To plaintiff's person;
3) intent; and
4) causation.
what are the elements for assault?: 1) an act by defendant creating a reasonable apprehension in plaintiff;
2) of immediate harmful or offensive contact to plaintiff's person;
3) intent; and
4) causation.
what are the elements for false imprisonment?: 1) an act or omission on the part of defendant that ocnfines or restrains plaintiff;
2) to a bounded area;
3) intent; and
4) causation.
what are the elements for intentional infliction of emotional distress?: 1) an act by defendant amounting to extreme and outrageous conduct;
2) intent or recklessness;
3) causation; and
4) damages--severe emotional distress.
What are the elements for trespass to land?: 1) physical invasion of plaintiff's real property;
2) intent; and
3) causation.
What are the elements for trespass to chattels?: 1) an act by defendant that interferes with plaintiff's right of possession in chattel;
2) intent;
3) causation; and
4) damages.
What are the elements for conversion?: 1) An act by defendant that interferes with plaintiff's right of possession in a chattel;
2) the interference is so serious that it warrants requiring defendant to pay the chattel's full value;
3) intent; and
4) causation.
What are the elements for common law defamation?: 1) defamatory language;
2) "of or concerning" the plaintiff;
3) publication thereof by defendant to a third person; and
4) damage to plaintiff's reputation.
What are the elements for defamation involving a matter of public concern (1st A Constitution): (same as common law defamation PLUS...)
1) defamatory language;
2) "of or concerning" the plaintiff;
3) publication thereof by defendant to a third person; and
4) damage to plaintiff's reputation.

PLUS

5)falsity of the defamatory language; and
6) fault on the part of the defendant.
What are the elements for slander per se?: BDCC (business, disease, crime-moralturp, chastity)
1) Adversely reflect on one's conduct in a business or profession;
2) One has a loathsome disease;
3) One is or was guilty of a crime involving moral turpitude; or
4) a woman is unchaste.
What are the elements for libel?: Libel is the written or printed publication of defamatory language. Plaintiff does not need to prove special damages and general damages are presumed.
For a public official or figure to prove defamation, what must plaintiff prove in addition to the elements for defamation?: Public official or figure must prove malice. Malice is:
1) knowledge that the statement was false, or
2) reckless disregard as to whether it was false.
What is the fault required and what damages are recoverable for a public official or public figure?: Fault: Actual malice (knowledge of the falsity or reckless disregard as to truth or falsity).
Damages: presumed damages under common law rules (and punitive damages where appropriate).
What is the fault required and what damages are recoverable for a private person/matter of public concern?: Fault: at least negligence as to statement's truth or falsity.
Damages: Damages only for proved "actual injury" (If plaintiff proves actual malice, presumed and punitive damages may be available)
What is the fault required and what damages are recoverable for defamation of a prive person/matter of private concern?: Fault: No fault as to truth or falsity need to proved.
Damages: Presumed damages under common law rules (and punitive damages where appropriate).
What is necessary to prove invasion of privacy--appropriation of plaintiff's picture or name?: It is necessary to show unauthorized use of plaintiff's picture or name for defendant's commercial advantage. Liability is generally limited to advertisements or promotions of products or services. Mere economic benefit to defendant (not in connection with promoting a product or service) by itself is not sufficient.
What is necessary to prove invasion of privacy--Intrusion upon seclusion?: The act of prying or intruding must be objectionable to a reasonable person. Further the thing intruded must be private. Photos in public place are not private.
What is necessary to prove invasion of privacy--publication of facts placing plaintiff in false light?: "False light" exists where one attributes to plaintiff views he does nto hold or actions he did not take. The false light must be something objectionable to a reasonable person under the circumstances. For there to be liability, there must be publicity.

If matter is of public interest, malice on defendant's part must be proved.
What is necessary to prove invasion of privacy--public disclosure of private facts about plaintiff?: There needs to be a public disclosure of private information about plaintiff and the disclosure must be objectionable to a reasonable person. There is liability even if true.
What are the elements for intentional misrepresentation?: M-KIC-JD

1) misrepresentation of a material fact. (silence not enough).
2) scienter (defendant knew or believed it was false)
3) intent to induce plaintiff to rely on the misrepresentation
4) causation (actual reliance)
5) justifiable reliance and
6) damages
What are the elements for negligent misrepresentation?: 1) misrepresentation by defendant in a business or professional capacity;
2) breach of duty toward a particular plaintiff;
3) causation;
4) justifiable reliance; and
5) damages
What are the elements for malicious prosecution?: 1) institution of criminal proceedings against plaintiff;
2) termination in plaintiff's favor;
3) absence of probable cause for prior proceedings
4) improper purpose
5) damages

Prosecutors are immune from liability.
What are the elements for tortious interference with business relations?: 1) existence of a valid contractual relationship between plaintiff and a third party or valid business expectancy of plaintiff;
2) defendant's knowledge of the relationship or expectancy;
3) intentional interference by defendant inducing a breach or termination of teh relationship or expectancy; and
4) damages.
What are the elements for a prima facie case of negligence?: 1) duty to conform to specific standard of conduct;
2) a breach of that duty;
3) the breach is the actual and proximate cause of the plaintiff's injury; and
4) damage.
What is the cardozo view (majority) view?: Duty only to foreseeable plaintiffs
What is the andrews view (minority) view?: Everyone is foreseeable. a duty is owed to all.
What are the duties owed by a bailor for a gratuitous bailment?: For a gratuitous bailment, the bailor must inform of known dangerous defects in the chattel.
What are the duties owed by a bailor for a bailment for hire?: For a bailment for hire, the bailor must inform of chattel defects of which he is or should be aware.
What are the duties owed by a bailee for: 1) sole benefit of the bailor? 2) for the sole benefit of the bailee? 3) for a mutual benefit bailment?: the duties owed by a bailee for:
1) sole benefit of the bailor-->low standard of care
2) for the sole benefit of the bailee-->there is a high standard of care
3) for a mutual benefit bailment-->ordinary standard of care
What is the duty of care owed to an undiscovered trespasser?: no duty is owed
what is the duty of care owed to a discovered or anticipated trespasser?: 1) duty to warn or make safe concealed unsafe or artificial conditions known to the landowner involving risk of death or serious bodily harm and
3) use reasonable care in the exercise of "active operations" on the property.
What duty of care do easment and license holder owe to trespassers?: Duty of reasonable care.
What is the duty of care owed to infant trespassers?: Attractive nuisance doctrine.

duty of ordinary care to avoid a reasonably foreseeable risk of harm to children caused by artificial conditions on his property.
What are the elements to prove an attractive nuisance?: Plaintiff must prove

1) a dangerous condition on the land that the owner is or should be aware of,
2) the owner knows or should know children frequent the vicinity of the condition,
3) the condition is likely to cause injury and
4) the expense of remedying the situation is slight compared with the magnitude of the risk
What is a licensee?: A licensee is one who enters on teh land with the possessor's permission for her own purpose or business rather than for the possessor's benefit.
What is the duty owed to licensees?: Possessor has duty to
1) warn of dangerous conditions (natural or artificial) known to the owner that create an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover and
2) exercise reasonable care in the conduct of "active operations" on the property.
What is an invitee?: Invitees enter land in response to an invitation by the landowner
What is the duty owed to invitees?: same duties as licensees plus a duty to make reasonable inspection
When may a statute's sepcific duty replace the common law duty?: 1) when the statute provides for a criminal penalty,
2) the statute clearly defines the standard of conduct,
3) plaintiff is within the protected class and
4) the statute was designed to prevent the type of harm suffered by plaintiff.
For intentional infliction of emotional distress... conduct required? fault required? causation and damages? bystander recovery when another is physically injured?: conduct required-->extreme and outrageous conduct by defendant

fault required-->intent to cause severe emotional distress or recklessness as to the effect of conduct

causation and damages--> defendant's conduct must cause severe emotional distress

bystander recovery when another is physically injured--> plaintiff bystander must be present when injury occurs and be a close relative and defendant must know of these facts
For negligent infliction of emotional distress... conduct required? fault required? causation and damages? bystander recovery when another is physically injured?: conduct required--> subjecting plaintiff to threat of physical impact or severe emotional distress likely to cause physical symptoms

fault required--> negligence in creating risk of physical injury to plaintiff

causation and damages--> defendant's conduct generally must cause tangible physical injury

bystander recovery when another is physically injured--> plaintiff bystander must be in zone of danger
Do pure comparative negligence states allow recovery no matter how great plaintiff's negligence?: Yes. The trier of fact weighs plaintiff's negligence and reduces damages accordingly.
Do partial/traditional comparative negligence states allow recovery no matter how great plaintiff's negligence?: NO. Plaintiff's negligence must be less serious or no more serious than that of defendant. MAJORITY OF STATES.
Do contributory negligence states allow recovery no matter how great plaintiff's liability?: NO. Plaintiff's claim is completely barred.

Defense negaged by defendant's last clear chance doctrine.
What are the elements for strict liability?: 1) existence of an absolute duty on the part of the defendant to make safe;
2) breach;
3) causation (actual and proximate cause); and
4) damage to person or property.
What are the three requirements for application of strict liability to ultrahazardous activities?: the activity:
1) involves risk of serious harm to persons or property;
2) cannot be performed without risk of serious harm no matter what level of care; and
3) not commonly engaged in the particular community.
What are the five theories of liability that plaintiff may use?: 1) intent
2) negligence
3) strict liability
4) implied warranties of merchantibility and fitness for a particular purpose, and
5) representation theories (express warranty and misrepresentation).
What are the common elements to find liability under products liability?: 1) plaintiff must show a defect and
2) existence of the defect when the product left defendant's control
What are the elements for liability based on strict tort liabliity?: 1) a strict duty is owed by a commercial supplier of a product
2) breach of that duty,
3) actual and proximate cause; and
4) damage.
What are the two warranties implied in every sale of goods?: 1) mercantibility (fit for general purposes)
2) fitness for a particular purpose (arises when seller knows or has reason to know the particular purpose)
What is an express warranty?: Any affirmation of fact or promise concerning goods that becomes part of the basis of the bargain.
When will a seller be liable for misrepresentation of facts concerning a product?: where:
1) the statement of a material fact concerning quality or uses of goods (mere puffery insufficient), and
2) the seller intended to induce reliance by the buyer in a particular transaction.
What is a private nuisance?: A private nuisance is a substantial unreasonable interference with another's private individual use or enjoyment of property that he possesses or has a right to possess.
What is a public nuisance?: A public nuisance is an act that unrasonably interferes with the health, safety, or property rights of the community.

Recovery only if private party suffered unique damages not suffered by the public at large.
When is there vicarious liability for the tortious act of an independent contractor?: Employer of independent contractor not vicariously liable unless activity is inherently dangerous or duty is nondelegable on public policy grounds.
When is there vicarious liablity for the tortious act of a partner or joint venturer?: Other partners or joint venturers vicariously liable if tortious act within scope and course of partnership.
When is there vicarious liablity for the tortious act of a driver of automobile?: Owner of car not vicariously liable if jx has family car doctrine or permissive use statute.
When is there vicarious liablity for the tortious act of a bailee of chattel?: bailor not vicariously liable
When is there vicarious liablity for the tortious act of a patron of tavern?: tavernkeeper not vicariously liable in absence of dramshop act.

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