MBE TORTS

I. Intentional Torts: a. Elements: 1) voluntary; 2) intent, 3) causation, 4) harm, 5) no privilege/defense

Intent: desire to cause harm, or knowledge it will occur.
Battery: Intentional harmful or offensive contact. Sufficient to contact something close to P-P need not be aware of contact.
Assault: Intentional act, which causes P to experience reasonable (objective) apprehension, of an immediate harmful or offensive contact.-
Inability to effectuate attempt does not defeat liability.
False Imprisonment: Intentional act, that causes the P to be confined or restrained, to a bounded area, against P’s will, with knowledge of
confinement, or injury.-Physically confining, failure to release; or invalid assertion of legal authority.-Brief confinement will suffice.
IIED: Extreme or outrageous conduct that causes P to suffer severe emotional distress.-Intent or Recklessness (high degree of probability)-
Language not outrageous except for innkeepers and common carriers.-Third Party: P is an immediate family member, and D is aware of
presence; or any other plaintiff were distress results in bodily harm.
Trespass (Land): Intentional Act-Physical Invasion of D’s land.-Does not have to realize a boundary line is crossed.-Actual Possession or
Immediate Possession.-Invasion satisfied when a P induces a third party or object to enter land.-Includes areas above and below land.-
Nominal Damages if no injury; Punitive Damages if willful or malicious.-Ejectment: action to recover possession.-Mense Damages: for
loss of use.
Trespass (Chattels): Intentional Act by D that interferes with P’s chattel causing harm.-Mistake is no defense.-Dispossession: direct
interference with possession-Intermeddling: Does not directly affect possession.-Actual possession or right to immediate possession
required.-ACTUAL DAMAGES REQUIRED (i.e. loss of use, cost of remedy).
Conversion: Intentional act by D that causes the destruction or serious and substantial interference with the P’s chattel.-Mistake is no
defense.-Damages: FMV or Replevin and Deprivation.
Defenses “POPCANS”: Privilege: Consent, Public Interest, or Essential Function-Consent: Express or Implied, Emergency Action or
Reasonable Person (Defenses to Consent: Mistake & D is Aware, D’s Fraud, Duress, Incapacity, Violation of Criminal Statute).-Self
Defense: Force necessary to avoid harm, reasonable belief.-Defense of Others: Same extent as Self Defense.-Defense of Property:
Reasonable to Prevent Harm, Never Deadly.-Necessity: to prevent substantially greater harm to public, himself or property. Public; no
liability, Private; liability for damage.-Authority: Lawful Arrest, Shopkeepers Privilege, Discipline.

II. Negligence: 1) Duty, 2) Standard of Care, 3) Breach, 4) Cause in Fact and Proximate Cause, 5) Damages
Duty: Obligation to conform to a standard of conduct to protect others from unreasonable risk.-Duty owed to foreseeable plaintiffs.-No
affirmative duty to aid in rescue, unless conduct cause peril.-Nonfeasence: Failure to do something.-Control Third Parties: Special
Relationship, Negligent Entrustment.-Government: Proprietary-Duty, Discretionary: No Duty, Ministerial: Duty.
NIED: Zone of Danger, Accompanying physical injury.-Bystander: Located near the scene, shock resulting from observance, had
a close relationship with victim.
Possessors of Land: Invitee: Inspect and make safe, Licensee: Warn, Trespassers: None if unknown, if known duty to warn of
hidden dangers. Children: Attractive Nuisance.
Standard of Care: Reasonably Prudent person under the same or similar circumstances, not altered by voluntary intoxication. Children:
Reasonable Child of same Age, Education, Intelligence, and experience. Adult activities conform to adult standard of care.
Breach of Duty: Conduct fails to conform to standard of care.
Cause in Fact: Actual cause must be proved by a preponderance of the evidence.
Proximate Cause: Foreseeable plaintiff within the zone of danger. Superseding Cause: breaks the chain of causation (i.e. acts of god,
criminal acts of 3p, intentional torts of 3p, and extraordinary negligent conduct.-Intervening Cause: Subsequent Malpractice, Illness, and
Negligent Rescue Effort.
Damages: must prove actual damages.-Assumption of Risk: Express or Implied

III. Strict Liability—Liable regardless of whether D exercised due care.

Possession of animals: animal must have known dangerous propensities—one bite rule.
Abnormally Dangerous Activities: 1) activity creates a serious risk, 2) risk cannot be eliminated by due care 3) activity is not usually
conducted in the area.
Defenses: Contributory Negligence is usually not a defense, unless P consciously disregards apparent danger. It can only reduce recovery.
Assumption of Risk: If the plaintiff knows of the danger and voluntarily exposes himself to it.
IV. Strict Products Liability: Proper Plaintiff, Proper Defendant (manufacturer, distributor and retailer), Product is in a defective or
unreasonably dangerous condition, Proximate Cause, Damages, Defenses: Misuse, Contributory Negligence
Product Liability in Negligence: Used Goods, Repairs of Used Goods, leasing real property, services, and franchisors.

V. Nusaince: Substantial interference with the use and enjoyment of land or right. Basis may be intentional, negligence or absolute. Public
v. Private, Damages or Injunction may be awarded.

VI. Defamation: 1) Defamatory Message 2) Publication 3) Damages: Pecuniary Required for Slander, Punitive Requires Evil
Slander Per Se: crime or moral turpitude, loathsome disease, business reputation, chastity Public Official: Malice
Defenses: Truth, Absolute Privilage

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MBE TORTS