Torts—Highly Tested MBE Topics, Charts, and a Checklist!

1. Negligence

There are four elements in a negligence action: duty, breach, cause, and harm. A plaintiff must prove all four in order to recover in a negligence action.

Duty

• Owed to foreseeable plaintiffs. Consider physical aspects but not mental ones.
• Standard of care = reasonableness
  • Exception: child—look to a child of similar age, experience, intelligence. (There is an exception to the exception if the child is engaged in an adult activity!)

• • Exception: professional malpractice—look only to custom.
  • Exception: premises liability
    • Undiscovered trespassers are owed no duty.

• • • Discovered trespassers—land possessor must warn of or make safe unreasonably dangerous artificial conditions that they know of.

• • • Licensees—land possessor must warn of or make safe dangers they know of.

• • • Invitees—land possessor must warn of or make safe dangers they know or should know of. ***Duty to inspect exists!

• • Exception: Negligence per se (right person, right injury). Plaintiff can prove duty and breach if they can show that defendant violated a statute without excuse and caused the particular harm the statute was trying to protect against a particular person the statute was trying to protect.

Breach

• Res ipsa loquitur: if plaintiff can show that it was probably the defendant who was probably negligent, plaintiff can make a case to get to the jury.

Cause

• Actual cause: plaintiff must show the harm would not have occurred if the defendant did not breach his duty in order to prove actual cause.
• Proximate cause: Plaintiff must show the harm was foreseeable. Things like rescuers, subsequent diseases, subsequent malpractice, etc. are all considered foreseeable.

Harm

• Plaintiff must prove actual damages. Nominal and punitive damages are not recoverable.
• Pure comparative negligence applies on the MBE.

2. Torts Involving Negligence

Negligent infliction of emotional distress (NIED): Defendant is negligent, and plaintiff has not suffered any actual physical trauma to his body.

• Zone of danger: defendant is negligent, plaintiff is in the zone of danger, and plaintiff’s emotional distress manifests itself in physical symptoms.
• Bystander case: plaintiff witnesses a negligent injury that is inflicted on a person closely related to plaintiff and plaintiff suffers physical symptoms from emotional distress.
• Special cases: doctor-patient, erroneous reports of relative’s death, mishandling of a corpse

Affirmative defenses to negligence

• Contributory negligence
• Comparative negligence (pure comparative negligence is the default on the MBE)
• Assumption of the risk 

3. Intentional Torts

The key for the intentional torts is intent. If the defendant does not have the intent to engage in the behavior, then there can be no intentional tort.

• Battery (act with intent to cause contact or apprehension, contact occurs)

• Assault (same as above except apprehension occurs)

• False imprisonment

 

• Intentional infliction of emotional distress: (mnemonic = RES) (defendant recklessly or intentionally engages in extreme or outrageous conduct and severe emotional distress results)
  • As compared with negligent infliction of emotional distress: (negligent injury, someone is in the zone of danger or sees a close family member get hurt, and suffers a physical manifestation)

• Trespass to land (the intentional physical invasion of the land of another)

• Trespass to chattels or conversion (Defendant intentionally interferes with the property of another and damage results. Trespass = minor damage. Conversion = major damage.)

 

Affirmative defenses to intentional torts

• Consent
• Self-defense
• Necessity (Public or private. For a private necessity, plaintiff must show unique harm.)

4. Other Torts

• Defamation (for a private figure, the plaintiff needs to show at least negligence; for public figure, plaintiff needs to show malice): Note that the statement must be untrue for a plaintiff to win a defamation lawsuit.

• Privacy torts (mnemonic = FAID)
  • False light (widely disseminating info that is true but puts plaintiff in false light)
  • Appropriation (using someone’s name/likeness for commercial benefit)
  • Intrusion (intruding on a reasonable expectation of privacy)
  • Disclosure (widely disseminating confidential information

• Strict liability torts
  • Wild animals (includes bears, tigers, lions, bobcats, killer bees, monkeys, and skunks; this list is not exhaustive) (does not include domestic animals or farm animals)

• • Abnormally dangerous activities
  • Strict products liability
    • Applies when the defendant is a merchant, the product is defective (manufacturing defect, design defect, or lack of warning/instructions), and plaintiff makes foreseeable use of the product. On the MBE, the plaintiff may sue everyone in the chain of distribution.

• Nuisance: a substantial and unreasonable interference with the plaintiff’s use and enjoyment of his land.

5. Multiple Defendant Issues

• Employers can be vicariously liable for the torts of their employees.
• Principals are not usually liable for the torts of independent contractors unless it is a nondelegable duty (i.e., concerning safety, like keeping the premises safe).

• Joint and several liability applies on the MBE. The plaintiff may sue either or both defendants for the full amount of damages (but can only recover once).

• • Indemnity is when one defendant seeks 100% of the damages from the “actively negligent” or guilty party (e.g., an employer can seek it from his employee).
  • Contribution: defendant seeks to be paid his or her share of damages from a liable co-defendant.

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