MBE Bar Prep - Torts

Elements of common law negligence

duty, breach, causation, damages

Duty- base rule

duty of reasonable care to foreseeable plaintiffs - to act like a reasonable person

Special duties

professional- must act like other professionals with the same background and training in their community

child- has a duty to act like other children of same age and maturity (UNLESS doing an adult activity- then it’s reasonable person standard)

parent- when the parent knew or should have known the child was likely to cause harm then parent has duty to act

duty to those on your land

unknown trespasser: NO duty

known trespasser or licensee (social guest invited over, etc): duty to warn of known dangers!

invitee (business/commercial property): duty to warn, clean up, and make safe!!

duty to rescue

generally NO duty BUT if you start to rescue or help, then you owe reasonable care under the circumstances

UNLESS special relationship - always duty to rescue! (parent/child, employer/employee, common carrier/passenger, innkeeper/guest)

2 prongs of causation

actual causation: but for causation

proximate causation: was it foreseeable? (ALL negligent conduct is foreseeable; i.e. doctor doing malpractice)

Intervening/Superseding Causes

Intervening: foreseeable events, original defendant is liable for them (default)

Superseding: unforeseeable events, original defendant is not liable (acts of god, intentional torts, criminal acts)

Defenses to Common Law Negligence

Contributory Negligence: if plaintiff was even a little bit negligent they get nothing

Pure Comparative Negligence: if plaintiff was negligent, the damages they recover get reduced by their percentage of at fault-ness

Modern/Modified Comparative Negligence: comparative but if plaintiff >50% at fault, recover nothing!

Assumption of risk: if the plaintiff knows and appreciates the risk involved but do it anyway, then cannot recover

Elements of Negligence Per Se

(1) violation of statute or ordinance

(2) plaintiff is part of the class of people the statute was trying to protect

(3) injury is kind of injury the statute is trying to prevent

Elements of Res Ipsa

(1) whatever occured does not normally occur absent negligence

(2) defendant was in exclusive control - (nobody else could have done it)

if both met, it raises / allows the jury to make an inference of negligence

Joint and Several Liability

2 or more people cause a single accident, don't know how much each is responsible, Plaintiff can choose to collect ALL damages from a single defendant!

once the level of fault is determined, the defendant who was recovered from can seek contribution from the other defendant

Vicarious Liability

Employer will be liable for negligent acts of their employee as long as employee was acting within scope of employment

Independent Contractors

• Generally, NOT liable

• Unless:

  • if the work the contractor is doing is abnormally dangerous or

  • if the work is a non delegable duty

    • work done on behalf of or for the safety of the general public

    • work done on public grounds- in a business, an office bldg etc

Strict Liability Situations

(1) abnormally dangerous activity

• blasting, dangerous chemicals, etc

(2) possession of wild animals

• ANY injury caused by or related to the wild animal, no matter how much caution is taken

• domestic animals can become wild animals! “devil dog”

(defense: assumption of the risk)

Product Liability Situations

(1) negligence! someone doesn't do what they're supposed to do!

(2) breach of warranty! company promises it'll do something and it doesn't

(3) strict product liability!

• it’s defective:

  • if it (1) leaves manufacturer in defective condition, (2) sold by a commerical seller, (3) used by a foreseeable user (4) in the manner in which it was intended

• OR Failure to warn or inadequate warning!

2 types of nuisance

Private Nuisance: one person interfering with one person

• unreasonable interference with a reasonable person’s use

Public Nuisance: interfering with the public at large

• for a private person to sue on public nuisance they have to show special or unique harm