TORTS PROFESSOR SHERMAN CLARK UNIVERSITY OF MICHIGAN LAW SCHOOL

TORTS PROFESSOR SHERMAN CLARK UNIVERSITY OF MICHIGAN LAW SCHOOL CHAPTER 1: INTENTIONAL TORTS INVOLVING PHYSICAL INJURY A. Generally 1. Three Elements t prve an intentinal trt, the plaintiff must prve:... 2. Intent The actr acts with the purpse f causing the cnsequence; OR The actr knws that the cnsequence is t fllw. a. Children and persns can be held liable fr intentinal trts if they act with the requisite intent (i.e., if they act with the purpse f causing the result r knw that the cnsequence is substantially certain t fllw). b. Transferred intent the intent t cmmit ne trt suffices fr the cmmissin f anther; this applies when a persn cmmits: A different intentinal trt against the same persn that he intended t harm; The same intentinal trt against ; OR A different intentinal trt against a different persn. Example 1: Prf. Clark thrws a brick at yu, intending t hit yu. If the brick hits yu, he cmmits battery. If the brick misses yu but puts yu in imminent apprehensin f being hit, he cmmits assault. Different trt/same persn: The intent t cmmit battery against yu transfers t the trt f assault against yu when the brick misses yu. Same trt/different persn: Similarly, if the brick misses yu and hits yur friend, he cmmits battery against yur friend. Different trt/different persn: Finally, if Prf. Clark intends t hit yu, and the brick misses yu and yur friend but puts yur friend in imminent apprehensin f being hit, then the intent t cmmit battery against yu will transfer t the intentinal trt f assault against yur friend.

B. Battery 1. Definitin Defendant causes a r cntact with the persn f anther; and Acts with the t cause that cntact r the apprehensin f that cntact. 2. Cnsent there is n battery if there is express r implied cnsent. 3. Harmful r Offensive Cntact a. Harmful causes an, pain, r illness. b. Offensive A persn f rdinary sensibilities wuld find the cntact ffensive. Example 2: Spitting n smebdy; grping smebdy. If the victim is, the defendant may still be liable if the defendant is aware but acts nnetheless. 4. Plaintiff s Persn includes anything cnnected t the plaintiff s persn. Example 3: Pulling a chair ut frm under smene; kncking a hat ff a persn s head. 5. Causatin the act must result in cntact f a harmful r ffensive nature (need nt be ). Example 4: Setting a bucket abve a dr, such that ice water falls n a persn s head when the dr is pened. 6. Intent If a cntact is nt cnsented t, that suffices t make it. The dctrine f transferred intent applies t battery. 7. Damages N prf f actual harm is required; the plaintiff can recver damages. Many states allw damages if the defendant acted: Outrageusly; r With. -plaintiff rule a defendant is liable fr all harm that flws frm a battery, even if it is much wrse than the defendant expected it t be. 2 2017 Themis Review Bar, LLC MBE Trts

C. Assault 1. Definitin plaintiff s reasnable imminent apprehensin f harmful r ffensive bdily cntact. Editr's Nte 1: The Restatement (Secnd) f Trts uses the phrase imminent apprehensin t refer t the apprehensin f an imminent harmful r ffensive bdily cntact. 2. Bdily Cntact nt required. 3. Plaintiff s Apprehensin Must be reasnable. The plaintiff must be f the defendant s actin. Example 5: If yu are sleeping and smene grpes yu, that persn cmmits battery even thugh yu are nt aware f it. If yu are sleeping and smene pretends t hit yu, there is n assault because assault requires awareness. 4. Imminent Must be withut significant. Threats f future harm r hypthetical harm are nt sufficient. 5. Mere Wrds Generally, mere wrds d nt cnstitute an assault. Hwever, wrds cupled with the circumstances can, in sme cases, be sufficient. 6. Intent present in ne f tw ways. The defendant must intend t cause either: An apprehensin f imminent harmful r ffensive cntact; r The cntact itself. Transferred intent applies t assault the defendant may intend t cause the cntact itself. 7. Damages N prf f damages is required; the plaintiff can recver nminal damages. In apprpriate cases, damages may be available. The plaintiff can als recver damages frm physical harm flwing frm the assault. MBE Trts 2017 Themis Bar Review, LLC 3

CHAPTER 2: INTENTIONAL TORTS: IIED, FALSE IMPRISONMENT, AND DEFENSES A. Intentinal Inflictin f Emtinal Distress (IIED) 1. Definitin extreme r cnduct intentinally causing severe emtinal distress. 2. Intent The defendant must intend t cause severe emtinal distress r at least act with as t the risk f causing severe emtinal distress. Transferred intent may apply. Editr's Nte 2: Under the Third Restatement, transferred intent may apply t intentinal inflictin f emtinal distress if, instead f harming the intended persn, the defendant s extreme cnduct harms anther. Thus, transferred intent is applicable t IIED nly when a persn cmmits the same intentinal trt (IIED) against a different persn. 3. Extreme r Outrageus Cnduct curts are mre likely t find cnduct r language t be extreme r utrageus if: The defendant is in a psitin f r ver the plaintiff; r The plaintiff is a member f a grup that has a. 4. Acts Directed Tward Third Parties (i.e., smene ther than the plaintiff) a defendant wh directs his cnduct at a third-party victim can als be liable t: Victim s member wh is present at the time f the cnduct. Example 6: A mther may be able t recver under the trt f IIED frm a defendant wh acted utrageusly tward the mther s yung child, knwingly distressing the mther, wh was present. Editr's Nte 3: A present immediate family member may be able t recver regardless f whether there has been bdily injury. Bystander wh is present at the time f the cnduct and wh suffers distress that results in. 5. Causatin the defendant s actins were at least a in bringing abut the plaintiff s harm. 6. Damages severe emtinal distress beynd what a reasnable persn shuld endure. Often, the extreme and utrageus character f the defendant s cnduct is evidence f the plaintiff s distress. Hypersensitivity if the plaintiff experiences an unreasnable level f emtinal distress, then the defendant is nly liable if aware f the plaintiff s hypersensitivity. 4 2017 Themis Review Bar, LLC MBE Trts

Physical injury is nt required (except in the case f a bystander, discussed abve). B. False Imprisnment 1. Definitin three elements: Defendant intends t r anther within fixed bundaries; The actins directly r indirectly result in cnfinement; and Plaintiff is f the cnfinement r harmed by it. Example 7: Lcking a persn in a clset. 2. Cnfined Within Bunded Area The area can be large. The area need nt be. 3. Methds f Cnfinement Use f, physical frce, threats, invalid use f legal authrity, duress, r refusing t prvide a safe means f escape. Shpkeeper s privilege a shpkeeper can, fr a reasnable time and in a reasnable manner, a suspected shplifter. A curt may find false imprisnment when the defendant has refused t perfrm a t help a persn escape. Example 8: is lcked. A stre clerk refuses t unlck a dressing rm in which smene 4. Time f Cnfinement immaterial. 5. Intent Defendant must act: With the purpse f cnfining the plaintiff; r Knwing that the plaintiff s cnfinement is substantially certain t result. Cnfinement due t defendant s negligence defendant will nt be liable under the intentinal trt f false imprisnment (but culd be liable under negligence). Transferred intent applies t false imprisnment. Example 9: A persn thrws a lg at yu, intending t hit yu. The lg traps yu in a crner, preventing yur escape. The persn has cmmitted false imprisnment. MBE Trts 2017 Themis Bar Review, LLC 5

6. Damages actual damages are nt required; plaintiff can recver damages. C. Defenses t Intentinal Trts Invlving Persnal Injury 1. Cnsent a. Express cnsent must be willing and knwing. Cnsent by mistake a defense unless the defendant caused the mistake r knew f it and tk advantage f it. Cnsent by fraud if it ges t an matter. Example 10: If yu engage in physical cntact with smene, thinking them t be richer than they are, that fraud will nt invalidate cnsent because the fraud des nt g t an essential matter. Hwever, if yu are in a hspital and smene sneaks in, puts n a dctr s cat, and tuches yu, and yu think the persn is a dctr, then the fraud ges t an essential matter, and cnsent will nt be valid. b. Implied cnsent Emergencies it is fair t assume that smene in need f rescuing wuld allw a rescuer t tuch him absent explicit cnsent. Injuries arising frm athletic cntests Editr's Nte 4: May be liable if the cnduct is reckless, which in this cntext means cnduct utside the nrmal scpe f the sprt. Mutual cnsent t cmbat c. Capacity yuth, intxicatin, incmpetency, etc. (i.e., lack f capacity) may undermine the validity f cnsent. 2. Self-Defense a. Use f reasnable frce a persn may use reasnable prprtinate (i.e., nt excessive) frce t defend against an ffensive cntact r bdily harm. b. Duty t retreat Traditinally, mst curts required retreat befre ne culd use deadly frce. Recently, many jurisdictins state that yu need nt retreat befre using reasnable, prprtinate frce. Editr's Nte 5: These are called stand yur grund laws. 6 2017 Themis Review Bar, LLC MBE Trts

c. Initial aggressr NOT permitted t claim self-defense unless the ther party has respnded t nndeadly frce with deadly frce. d. Injuries t bystanders the actr is nt liable fr injuries t bystanders as lng as the actr was behaving reasnably (i.e., nt negligent) and the injury was. 3. Defense f Others allws yu t use reasnable frce in defense f thers. 4. Defense f Prperty a. Reasnable frce may be used if the persn reasnably believes it is necessary t prevent trtius harm t the prperty. b. Deadly frce Cannt be used. A persn may never use deadly mechanical devices t defend prperty (e.g., a spring gun). Exam Tip 1: Remember that the defense f self-defense may still apply if the persn reasnably fears fr her wn bdily safety. c. Recapture f chattels Reasnable frce may be used t reclaim prperty that has been wrngfully taken. If the riginal taking was lawful, then nly peaceful means may be used. d. Frce t regain pssessin f land Cmmn law reasnable frce permitted. Mdern rule use f frce is n lnger permitted; nly legal prcess. 5. Parental Discipline parents may use reasnable frce as necessary t discipline children. 6. Privilege f Arrest a. Private citizen Permitted t use reasnable frce t make an arrest in the case f a IF: The felny has actually been cmmitted; AND The arresting party has t suspect that the persn being arrested has cmmitted the felny. It IS a defense t make a reasnable mistake as t the identity f the feln, but it IS NOT a defense t make a mistake as t whether the felny was actually cmmitted. b. Plice Must reasnably believe that a felny has been cmmitted and that the persn arrested cmmitted it. MBE Trts 2017 Themis Bar Review, LLC 7

An fficer wh makes a mistake as t whether a felny has been cmmitted is. c. Misdemeanr An arrest by a plice fficer may nly be made if the misdemeanr was cmmitted in the fficer s presence. An arrest by a private persn may nly be made if there is a. CHAPTER 3: HARMS TO PERSONAL PROPERTY AND LAND A. Trespass t Chattels 1. Definitin an intentinal interference with the plaintiff s right t pssessin f persnal prperty either by: the plaintiff f the chattel; with the plaintiff s chattel; r Damaging the chattel. 2. Intent Only the intent t d the interfering act is necessary. Defendant need nt have intended t interfere with anther s pssessin f tangible prperty. Mistake abut the legality f the actin is nt a defense. 3. Damages the plaintiff may recver actual damages, damages resulting frm the lss f use, r the cst f repair. Editr's Nte 6: In cases invlving use r intermeddling, Plaintiff may nly recver actual damages. B. Cnversin 1. Definitin the defendant intentinally cmmits an act depriving the plaintiff f pssessin f his chattel r interfering with the plaintiff s chattel in a manner s serius as t deprive the plaintiff entirely f the use f the chattel. 2. Intent Defendant must nly intend t cmmit the act that interferes. Mistake f law r fact a defense. 3. Damages the plaintiff can recver the chattel s full value at the time f cnversin. 4. Trespass t Chattels vs. Cnversin Curts cnsider the fllwing factrs: 8 2017 Themis Review Bar, LLC MBE Trts

The and extent f the interference; Defendant s intent t assert a right incnsistent with the rightful pssessr; Defendant s ; Expense r incnvenience t the plaintiff; and Extent f the harm. The mre extreme the interference, the mre likely the curt will find cnversin. C. Trespass t Land 1. Definitin the defendant intentinally causes a physical invasin f smene s land. 2. Intent Defendant need nly have the intent t enter the land r cause the physical invasin. Intent t cmmit a wrngful trespass is NOT required. Mistake f fact is nt a defense. 3. Physical Invasin trespass t land includes causing bjects t invade the land. 4. Trespass vs. Nuisance Nuisance may r may nt invlve a physical invasin r intrusin. Trespass always invlves an actual physical invasin r intrusin upn the land. 5. Rightful Plaintiff anyne in pssessin can bring an actin, nt just the wner. 6. Damages n prf f damages is required. 7. Necessity as a Defense t Trespass a. In general available t a persn wh enters nt the land f anther r interferes with that individual s persnal prperty t prevent an injury r t prevent anther severe harm. b. Private necessity (partial r qualified privilege) The defendant must pay fr actual damages that she has caused. The defendant is nt liable fr nminal damages. The landwner may nt use frce t exclude the persn. c. Public necessity Private prperty is intruded upn r destryed when necessary t prtect a large number f peple frm public calamities. Example 11: Damaging a swimming pl t prtect the public frm a fire. NOT liable fr damages t the prperty. MBE Trts 2017 Themis Bar Review, LLC 9

D. Nuisance 1. Private Nuisance a. Definitin an activity that substantially and interferes with anther s and f land. Example 12: Lud nises r ful drs. b. Interference Curts are vague regarding what cnstitutes an unreasnable interference. Must be annying t an rdinary, persn. Smene hypersensitive may nt have a cause f actin fr nuisance. Smene wh is nt ACTUALLY bthered may still have a cause f actin fr nuisance if it wuld bther an rdinary, reasnable persn. Curts will als balance the interference with the utility f the nuisance. Need nt be a physical invasin. c. Nt a nuisance Histrically, curts have refused t find the blcking f sunlight r the bstructin f t be nuisances. Exceptin: The spite fence. If a persn puts up a fence with n except t blck a neighbr s view r sunlight, then curts will smetimes find that t be a nuisance. d. Defenses t private nuisance Cmpliance with state r lcal administrative. Evidence as t whether the activity is reasnable. Nt a cmplete defense. Cming t the nuisance Curts are hesitant t allw yu t cmplain that cnduct unreasnably interferes with yur use and enjyment f the land if yu mved smewhere knwing abut that cnduct. NOT a cmplete defense ne factr cnsidered by the curt. 2. Public Nuisance An unreasnable interference with a right cmmn t the. Example 13: Pllutin, blcking f a public highway, r interfering with the public s use f public space. 10 2017 Themis Review Bar, LLC MBE Trts

A private individual generally cannt recver unless the individual has been harmed in a special r way, different frm the public. Editr's Nte 7: This is best understd as a cncept, rather than a trt. If smething is interfering with the right f the public as a whle, presumptively the public agencies shuld deal with it. CHAPTER 4: REVIEW OF CHAPTERS 1 3: INTENTIONAL TORTS 1. One way in which a defendant can be said t have the intent necessary fr an intentinal trt is if she acted with the purpse f bringing abut the cnsequence. What is the ther way in which a defendant can be said t have acted intentinally? If he acted knwing that the cnsequence was t ccur. 2. Des this mean that in rder t be liable fr an intentinal trt the defendant must have intended r anticipated the extent r exact nature f the harm? 3. What is the dctrine f transferred intent? When a persn intends t cmmit an intentinal trt against ne persn, but instead cmmits: 1) The intended trt against a persn; 2) A different intentinal trt against that persn; r 3) A different intentinal trt against a different persn. 4. T what intentinal trts des the dctrine f transferred intent apply? Battery,, false imprisnment, trespass t land, and trespass t chattels; but it des nt apply t the trt f inflictin f emtinal distress. 5. What are the elements f the trt f battery? 1) Defendant causes a harmful r ffensive cntact with the persn f anther; and 2) Acts with the intent t cause such cntact r the apprehensin f such cntact. MBE Trts 2017 Themis Bar Review, LLC 11

6. What is the trt f assault, and hw is it different frm battery? Assault is the plaintiff s reasnable imminent apprehensin that ne is abut t be the victim f a battery (i.e., harmful r ffensive cntact). If battery is hitting smene, then assault is making smene think they are. 7. What cnstitutes the trt f intentinal inflictin f emtinal distress (IIED)? A defendant is liable fr intentinally r causing severe emtinal distress with extreme r utrageus cnduct. 8. Des the dctrine f transferred intent apply t IIED? 9. What are the elements f the trt f false imprisnment? When a persn acts: 1) Intending t cnfine r restrain anther within fixed bundaries; 2) Thse actins directly r indirectly result in such cnfinement; and 3) The ther is either f the cnfinement r is harmed by it. 10. Cnsent is a defense t intentinal trts. Des that cnsent need t be explicit?. Cnsent can be implied, as by participating in a cntact sprt. 11. What are the requirements fr the defense f self-defense? A persn may use reasnable frce t defend against an ffensive cntact r bdily harm. The frce used in self-defense must be t the anticipated harm. 12. May ne use frce t defend anther persn? Is defense f thers a defense?. One is justified in using reasnable frce in defense f thers t the same extent that ne wuld be entitled t use self-defense. The frce must be prprtinate t the anticipated harm. 12 2017 Themis Review Bar, LLC MBE Trts

13. May frce ever be used t prtect prperty?, with limits. A persn may use reasnable frce t defend her prperty if she reasnably believes it is necessary t prevent trtius harm t her prperty. frce may nt be used merely in defense f prperty. If smene uses deadly frce in defending her, it is valid nly if in the prcess f defending her hme she reasnably believes herself, her family, r thers t be in danger. 14. What is the trt traditinally knwn as trespass t chattels? Intentinal interference with the plaintiff s right t chattels (i.e., tangible persnal prperty) by either: 1) Dispssessing the plaintiff f the chattel; r 2) Using r intermeddling with the plaintiff s chattel. 15. What is the trt f cnversin? A defendant is liable fr cnversin if he intentinally cmmits an act depriving the plaintiff f f her chattel r interfering with the plaintiff s chattel in a manner s serius as t deprive the plaintiff f the use f the chattel. The plaintiff s damages equal the chattel s. 16. What is the trt f trespass t land? When a defendant intentinally causes a f land. 17. If the defendant thinks the land is his, has he still cmmitted trespass t land?. The defendant need nly have the intent t enter the land (r t cause a physical invasin), nt the intent t cmmit a wrngful trespass. In ther wrds, mistake f fact is nt a defense. 18. What is the defense f private necessity? A defendant wh acts t prevent a threatened injury r harm has the privilege t enter nt the prperty f anther and t use that prperty in that way. The prperty wner cannt use self-help t exclude the defendant as a. MBE Trts 2017 Themis Bar Review, LLC 13

19. What des it mean t say that private necessity is an incmplete privilege? The prperty wner is entitled t recver damages even thugh the defendant is nt a trespasser. 20. What is the defense f public necessity? A persn enters nt the land in rder t prtect a large number f peple frm, such as the spreading f a fire. He is nt liable fr any damage t the prperty. 21. What is the trt f private nuisance? A private nuisance is a thing r activity that substantially and unreasnably interferes with anther individual s f her land. 22. What is a public nuisance? A public nuisance is an unreasnable interference with a right cmmn t the public as a whle. A public agency is empwered by statute r regulatin t take actin t abate the public nuisance. CHAPTER 5: NEGLIGENCE: DUTY AND STANDARD OF CARE A. In General 1. Elements (actual and prximate) B. Duty 1. Intrductin Curts may use the term duty t cver three cncepts: Whether a persn has a LEGAL bligatin t act a certain way (as ppsed t a scial r mral ne); Hw careful a persn shuld be when he des act (discussed under Standard f Care, infra); OR The scpe f liability (t whm shuld a persn be liable Palsgraf case). 14 2017 Themis Review Bar, LLC MBE Trts

2. Substantive Rule Duty as the Standard f Care T behave as a reasnable persn f rdinary prudence under the circumstances. N duty t act affirmatively. 3. Freseeability f Harm the freseeability f the harm t thers is a factr in determining the scpe f duty. A reasnably prudent persn wuld nt engage in activities with an unreasnable risk f harm. 4. Scpe f Duty Freseeability f Plaintiff Duty f care is wed t plaintiff nly if plaintiff is a member f the class f persns wh might be freseeably harmed by the cnduct. 5. Rescuers a persn wh cmes t the aid f anther is a. 6. Crime Victims cnsidered freseeable plaintiffs in certain circumstances. Example 14: A driver wh leaves a passenger in a high-crime area may be liable in trt if that passenger becmes a victim f a crime. 7. Affirmative Duty t Act In general, there is n affirmative duty t help thers. The fllwing are exceptins t that rule: a. Assumptin f duty a persn wh vluntarily aids r rescues anther is liable fr any injury caused by the failure t act with reasnable care in the perfrmance f that aid r rescue. Example 15: If yu pick up a passenger wh was cld and then make him leave yur vehicle, yu may be liable if the passenger freezes. b. Placing anther in Example 16: If yu see smene drwning in a pl, yu d nt have a duty t rescue her. Hwever, if yu are the ne wh kncked her int the water, then yu have a duty. c. By authrity a persn with the ability and actual authrity t cntrl anther has a duty t exercise reasnable cntrl. Example 17: A parent s cntrl ver a child. d. By relatinship The defendant has a special relatinship with the plaintiff. Example 18: Cmmn carrier passenger; innkeeper-guest. Duty t aid r assist thse persns and prevent reasnably freseeable injuries. MBE Trts 2017 Themis Bar Review, LLC 15

CHAPTER 6: NEGLIGENCE: STANDARD OF CARE (CONT D.) A. Standard f Care 1. Reasnably Prudent Persn Under the Circumstances an standard. a. Mental and emtinal characteristics defendant is presumed t have average mental abilities and knwledge. b. Physical characteristics particular physical characteristics are taken int accunt. Example 19: Blindness r deafness. c. Intxicatin intxicated peple are held t the same standard as sber peple unless the intxicatin was. d. Children Ask: What wuld a reasnably prudent child f that d? Mre subjective. Children engaged in high-risk adult activities (e.g., driving a car) the child will be held t an adult standard f care. 2. Custm relevant evidence, but nt dispsitive evidence. 3. Prfessinals Expected t exhibit the same skill and knwledge as anther practitiner in the. 4. Physicians Editr's Nte 8: Specialists may be held t a higher standard. Traditinal rule physician in the same r similar lcality. Mdern trend natinal standard. Patients must give infrmed : Dctrs must explain risks f medical prcedures. Dctrs are nt required t infrm the patient if the risks are cmmnly, if the patient is uncnscius, if the patient waives/refuses the infrmatin, if the patient is incmpetent, r if the patient wuld be harmed by disclsure (e.g., it wuld cause a heart attack). 16 2017 Themis Review Bar, LLC MBE Trts

5. Negligence Per Se when a law r statute establishes a particular standard f care, the curt will apply that standard f care. a. Elements A criminal law r regulatry statute impses a particular duty fr the prtectin r benefit f thers; Defendant the statute; Plaintiff must be in the class f peple intended t be prtected by the statute; The accident must be the that the statute was intended t prtect against; The harm was caused by a vilatin f that statute. b. Defenses Exam Tip 2: At the heart f a negligence per se analysis is the questin: is this the type f harm that the statute was intended t prevent? Exam Tip 3: Cmpliance with a statute des nt necessarily mean that the defendant was NOT negligent. Defendant must shw that cmplying with the statute wuld be even mre dangerus than vilating the statute. Cmpliance was impssible r an emergency justified vilatin f the statute. c. Vilatin by plaintiff cunts as cmparative r cntributry negligence. CHAPTER 7: NEGLIGENCE: STANDARD OF CARE (CONT D.) Exam Tip 4: As a general rule, apply the reasnableness standard t varius types f defendants, then cnsider what curts have determined t be reasnable fr particular circumstances, rather than thinking f these as different rules. A. Standards f Care fr Specific Situatins 1. Cmmn Carriers and Innkeepers Traditinal rule: highest duty f care cnsistent with the practical peratin f the business. Culd be held liable fr slight negligence. Many curts tday: liable nly fr rdinary negligence (nt a higher standard). 2. Autmbile Drivers Guests and friends in a car drivers were traditinally liable nly fr grssly negligent, wantn, r willful miscnduct (i.e., guest statutes ). Many jurisdictins have abandned guest statutes and apply a general duty f reasnable care standard t the driver f a car. MBE Trts 2017 Themis Bar Review, LLC 17

3. Bailrs and Bailees Bailment a bailee temprarily takes f anther s (the bailr s) prperty. Example 20: A driver leaves a car with a valet. Cmmn law: Cmplicated rules regarding the standard f care in a bailment; fr example: Bailr must warn a gratuitus bailee f knwn. If the bailr receives the sle benefit, then the bailee has a lesser duty. If the bailee receives a benefit, then he has a higher duty f care; even slight negligence can result in liability. 4. Emergency Situatins the standard f care is that f a reasnable persn under the same circumstances. B. Pssessrs f Land relates t negligence in the maintenance f prperty (e.g., artificial r natural cnditins n the land), nt cnduct perfrmed n the wner s prperty. 1. Tw Appraches One-half f all jurisdictins cntinue t fllw the traditinal rules the standard f care wed t peple wh cme nt the land depends n whether the persn is an invitee (highest standard f care), a licensee (intermediate standard f care), r a trespasser (lwest standard f care). Other ne-half f jurisdictins, status is still relevant, but nly as it relates t due care. 2. Trespassers On the land withut cnsent r. a. Traditinal Apprach Duty: Pssessr is bligated t refrain frm,, intentinal, r reckless miscnduct. Use f a r trap will result in liability. Undiscvered trespassers n duty wed. Discvered r anticipated trespassers: Must warn r prtect them frm hidden dangers. Attractive nuisance dctrine a pssessr f land may be liable t injuries t trespassing n the land if: An artificial cnditin exists in a place where the wner r has reasn t knw that children are likely t trespass; 18 2017 Themis Review Bar, LLC MBE Trts

The land pssessr knws r has reasn t knw that the artificial cnditin pses an unreasnable risk f r ; The children, because f their age, d nt discver r cannt appreciate the danger; The utility t the land pssessr f maintaining the cnditin is slight cmpared t the risk f injury; and The land pssessr fails t exercise reasnable care. Flagrant trespassers in sme jurisdictins, burglars, etc. are wed an even lesser duty f care. 3. Invitees Smene wh cmes nt the land fr the wner s purpse, a mutual r jint purpse. Example 21: A custmer in the wner s business. Land pssessr wes a duty f. Nn-delegable duty: Cannt avid the duty by assigning care f the prperty t an independent cntractr. 4. Licensees Enters the land with express r implied permissin. Example 22: Allwing neighbrhd children t walk acrss the prperty n their way t schl. Traditinal rule: Land pssessr has a duty t either make the prperty reasnably safe r warn licensees f cncealed dangers. N duty t fr dangers. Must exercise reasnable care in cnducting activities n the land. 5. Landlrd and Tenant Landlrd must maintain safe cmmn areas, must warn f, (especially fr premises that are leased fr public use), and must repair hazardus cnditins. Exam Tip 5: As an ccupier f land, the tenant cntinues t be liable fr injuries arising frm cnditins within the tenant s cntrl. 6. Off-Premises Victim Land pssessr is generally nt liable fr injuries resulting frm natural cnditins. Exceptin: Trees in urban areas. Artificial cnditins must prevent risk f harm t persns nt n the premises. MBE Trts 2017 Themis Bar Review, LLC 19

Must exercise reasnable care in cnducting activities n the land. C. Breach f Duty 1. Traditinal Apprach fcuses n a cmmn-sense apprach f what the reasnably prudent persn wuld d under the circumstances. 2. Cst-Benefit Analysis curts specify what shuld have been taken, and they weigh that against the likelihd f. Exam Tip 6: Dn t get hung up n the difference here; it s really just tw ways f getting t the same result. CHAPTER 8: NEGLIGENCE: RES IPSA LOQUITUR A. Res Ipsa Lquitur 1. General Principle in sme cases, circumstantial evidence f negligence is sufficient evidence f negligence. Example 23: A barrel rlls ut f a building and crushes a passerby. A jury culd reasnably cnclude that sme type f negligence was the mst likely cause f that injury. 2. Traditinal Elements The accident was f a kind that rdinarily des nt in the absence f negligence; It was caused by an agent r instrumentality within the f the defendant; and It was nt due t any actin n the part f the. 3. Mdern Trends a. Medical malpractice in cases in which sme dctr, nurse, r ther persnnel acted negligently t harm a patient, a small number f jurisdictins shift the burden by hlding ALL defendants jintly and severally liable unless they can exnerate themselves. b. Prducts liability many curts ignre the exclusivity requirement when it is clear that the defect riginated upstream f the package s wrapping r sealing. c. Cmparative-fault jurisdictins many cmparative-fault jurisdictins (discussed in Chapter 13, infra) lsely apply the third element (i.e., that the harm was nt caused by any actin by the plaintiff). 4. Third Restatement applies the elements generusly: The accident is a type f accident that as a result f negligence f a class f actrs; and 20 2017 Themis Review Bar, LLC MBE Trts

The defendant is a member f that class. 5. Prcedural Effect Des nt result in a fr the plaintiff. The curt allws the case t g t the jury. Exam Tip 7: Res ipsa lquitur reminds the trier f fact that circumstantial evidence can be sufficient. CHAPTER 9: NEGLIGENCE: CAUSATION A. Causatin has tw cmpnents: Cause in fact ( but-fr cause ). Prximate cause. 1. Cause in Fact a. But-fr test the plaintiff must shw that the injury wuld nt have ccurred but fr the defendant s negligence. Example 24: A car s brakes are negligently repaired. The car is struck by a meterite, injuring the driver. The persn wh repaired the brakes is nt liable, because his negligence is nt the but-fr cause f the driver s injuries. b. Multiple/indeterminate trtfeasrs the but-fr test can be prblematic in the fllwing circumstances: Multiple trtfeasrs it cannt be said that any f the defendant s trtius cnduct necessarily was required t prduce the harm; Example 25: Several yuths thrw a pian ff a rf, damaging a car. The plaintiff will have difficulty shwing that the cnduct f any defendant was necessary t cause the plaintiff s harm. Multiple pssible the plaintiff cannt prve which defendant caused the harm; r Medical misdiagnsis increased the prbability f the plaintiff s death r injury, but the plaintiff prbably wuld have died r been injured even with a prper diagnsis. 1) Substantial factr test Used as a catch-all when there are cnceptual prblems with causatin. Asks whether the negligence was a substantial factr in causing the harm. MBE Trts 2017 Themis Bar Review, LLC 21

2) Cncurrent trtfeasrs cntributing t an individual injury When the trtius acts f tw r mre defendants are each a factual cause f ne harm, then jint and several liability applies. Example 26: A persn negligently hangs laundry n a stp sign. A driver negligently speeds thrugh the intersectin cntrlled by the stp sign. The driver injures a pedestrian. The persn and the driver are jintly and severally liable fr the pedestrian s injuries. 3) Alternative causatin Plaintiff s harm was caused by nly ne f a few defendants (usually tw) and each was negligent, and it cannt be determined which ne caused the harm. Curts will shift the burden f prf t the defendants will impse liability n bth unless they can shw which ne f them caused the harm. 4) Cncert f actin if tw r mre trtfeasrs were acting tgether cllectively and that causes the plaintiff s harm, then all defendants will be jintly and severally liable. c. Lss f chance f recvery Traditinally, patients with less than a 50% chance f survival wuld nt ever be able t recver fr negligence, because they may nt be able t prve that they wuld have survived but fr the defendant s actins. Example 27: A patient has a 20% chance f survival. The dctr negligently treats that patient by misdiagnsing the patient s cnditin. Ordinarily, the patient wuld lse if the nrmal causatin rules applied. If a physician negligently reduces the plaintiff s chance f survival, then that plaintiff can recver. In cases in which the plaintiff was likely t die anyway, curts in many jurisdictins alter the rules f causatin, allw recvery fr the lst chance f survival, but discunt damages awarded t the plaintiff. Example 28: If the plaintiff s ttal damages are $1,000,000, and his chances f survival were 40% withut the negligent misdiagnsis and 25% after the misdiagnsis, then the plaintiff will recver $150,000: ($1,000,000 (40% 25%)). B. Prximate Cause (Legal Cause) Even if an injury may have been actually caused by the defendant, if the cnnectin t the harm is t attenuated, then the defendant may nt be liable. 22 2017 Themis Review Bar, LLC MBE Trts

1. Freseeability f Harm Example 29: If a driver speeds dwn a street and causes a pedestrian t jump ut f the way and sprain an ankle, then the driver is liable. If the sund f the driver s car reminds a passerby f a car the passerby used t wn, and the sund makes the passerby want t g fr a drive, and the passerby is later in a car accident while driving, then the driver is nt liable. 2. Intervening Acts If intervening acts are freseeable, then the defendant will still be liable. Intervening acts may be negligent r even criminal and still nt break the chain f causatin. Example 30: A persn negligently leaves several laded guns at a schl playgrund. A student picks up a laded gun and shts anther student. That is an intervening criminal act, but the persn is still liable. It is nt a superseding cause that relieves the persn f liability because it is Scpe f liability: a persn is liable fr the that made her cnduct negligent. 3. Extent f Damages Exam Tip 8: When asking whether a particular cnsequence f negligence is t remte, ask is this what made the cnduct negligent t begin with? The defendant is liable fr the full extent f the plaintiff s injuries, even if the extent is unusual r unfreseeable. Exam Tip 9: The TYPE f damages, but nt the EXTENT, must be freseeable. CHAPTER 10: REVIEW OF CHAPTERS 5 9: NEGLIGENCE 1. What are the traditinal elements f negligence? 1) Duty. 2). 3) Causatin. 4) Harm. MBE Trts 2017 Themis Bar Review, LLC 23

2. In general, trt law des nt impse affirmative duties; when d curts say there is an affirmative duty t help thers? 1) A persn vluntarily aids r rescues anther. 2) A persn places anther in danger, even nn-negligently. 3) T perfrm cntractual bligatins with due care. 4) One with actual ability and t cntrl anther. 5) Defendants with a relatinship t plaintiffs (e.g., cmmn carrier passenger; innkeeper-guest). 3. What is the basic backgrund standard f care impsed by trt law? A reasnably persn under the circumstances. 4. Is the standard named in the previus questin an bjective reasnableness standard r a subjective gd-faith standard? An standard. 5. What variatin f the standard f care named in questin #3 is applied t children? The standard f care impsed upn a child is that f a reasnable child f similar age. Hwever, a child engaged in an is held t the same standard as an adult. 6. What factrs are taken int accunt in the cst-benefit apprach? 1) The likelihd f the harm. 2) The severity f the harm. 3) The that culd have been taken. 7. Hw is custm relevant in determining the standard f care? Evidence f custm in a cmmunity r an industry is relevant evidence t establish the prper standard f care, but it is nt. 24 2017 Themis Review Bar, LLC MBE Trts

8. What variatin f the standard f care is applied t dctrs? A prfessinal persn (e.g., dctr, lawyer, r electrician) is expected t exhibit the same skill, knwledge, and care as anther practitiner in the. 9. What des infrmed cnsent mean in the cntext f trt law? Physicians are under a specific bligatin t explain the f a medical prcedure t a patient in advance f a patient s decisin t cnsent t treatment. Failure t d s cnstitutes a breach f the physician s duty. 10. What is the dctrine f negligence per se? 1) When a statute impses upn a persn a specific standard f care; 2) Defendant is liable if the persn injured is in the f persns prtected by the statute; 3) The harm is the type f harm that the statute is intended t ; and 4) The vilatin f that statute was a prximate cause f the harm. 11. What standard f care has been impsed n cmmn carriers and innkeepers? Traditinally, cmmn carriers and innkeepers were held t the highest duty f care cnsistent with the practical f the business. A majrity f curts cntinue t hld cmmn carriers t this higher standard. Hwever, mst curts tday hld that an innkeeper (htel peratr) is liable nly fr rdinary negligence. 12. What are guest statutes in the cntext f the negligence standard f care? These statutes limited the liability f drivers t passengers in their cars. They held drivers liable nly if they had been guilty f grss negligence r wantn r willful miscnduct. MBE Trts 2017 Themis Bar Review, LLC 25

13. In assessing the liability f pssessrs f land, curts traditinally fcused n the status f the persn injured n the land. What were the traditinal categries? 1). 2). 3). 14. What duties were wed t plaintiffs in each categry? 1) Trespasser:, except nt t engage in willful, wantn, r reckless disregard fr their safety. 2) Licensee: Duty t warn f hidden dangers. 3) Invitee: Duty f. 15. What is the attractive nuisance dctrine? A land pssessr may be liable fr injuries t children trespassing n the land if: 1) An artificial cnditin exists in a place where the land pssessr knws r has reasn t knw that children are likely t trespass; 2) The land pssessr knws r has reasn t knw that the cnditin pses an unreasnable risk f death r serius bdily injury t children; 3) The children, because f their yuth, d nt discver r cannt appreciate the danger presented by the cnditin; 4) The utility t the land pssessr f maintaining the cnditin and the burden f eliminating the danger are slight cmpared t the risk f harm presented t children; and 5) The land pssessr fails t exercise reasnable care t prtect children frm the harm. 26 2017 Themis Review Bar, LLC MBE Trts

16. What is the dctrine f res ipsa lquitur? Circumstantial evidence can be sufficient t shw negligence. Under the traditinal standard fr res ipsa lquitur, the plaintiff must prve that: 1) The accident was f a kind that rdinarily des nt ccur in the absence f negligence; 2) It was caused by an agent r instrumentality within the exclusive f the defendant; and 3) It was nt due t any actin n the part f the plaintiff. 17. What extensin f res ipsa lquitur d sme curts apply in sme medical malpractice cases? If several peple take care f a patient and ne f them may have been negligent, but the plaintiff cannt say which ne, then the curts will shift the burden t thse defendants, hlding them jintly and severally liable unless they can present evidence f which persns were negligent. 18. Causatin can be thught f as having tw cmpnents. What are they? 1) Cause in fact. 2) (r scpe f liability ). 19. What is meant by cause in fact? If the plaintiff s injury wuld nt have ccurred but fr the defendant s negligence, then the defendant s cnduct is a factual cause f the harm. 20. What is prximate cause? The plaintiff must shw that the causal cnnectin was nt t r attenuated. 21. Hw d curts fllwing the Third Restatement wisely apprach prximate cause? They ask whether the harm is the kind f risk that made the defendant s cnduct. MBE Trts 2017 Themis Bar Review, LLC 27

CHAPTER 11: NEGLIGENCE: DAMAGES AND SPECIAL RULES OF LIABILITY A. Damages 1. Actual (Cmpensatry) Damages Purpse is t make the plaintiff whle again. Smetimes, a plaintiff wh suffers a injury can als recver fr damages (i.e., parasitic damages ). Ecnmic-lss rule a plaintiff wh suffers nly ecnmic lss withut any related persnal injury r prperty damage cannt recver in negligence. Example 31: Smene negligently damages a rad. A business wner lses business due t the damage t the rad but cannt recver fr that ecnmic lss because the business wner has nt suffered any persnal injury r prperty damage. If a plaintiff has prven nn-ecnmic injury, then the plaintiff can recver nn-ecnmic and ecnmic damages. 2. Mitigatin f Damages Plaintiff must take steps t mitigate damages. Nt really a duty ; instead, a limitatin n recvery. 3. Persnal Injury: Categries f Damages, bth past and future. Pain and suffering. Lst incme and reduced. 4. Prperty Damage a. General rule the plaintiff may recver the difference between the f the prperty befre and after the injury. b. Cst f repair r replacement value ften allwed as an alternative measure f damages. 5. Cllateral-Surce Rule a. Traditinal rule Benefits r payments t the plaintiff frm utside surces, such as, are nt credited against the liability f any trtfeasr. Evidence f such payments is nt admissible at trial. b. Mdern trend Mst states have eliminated r substantially mdified the rule t avid duble recvery. Payments made t the plaintiff by the defendant s insurer are credited against the defendant s liability. 28 2017 Themis Review Bar, LLC MBE Trts

6. Punitive Damages If the defendant acted,, recklessly, r with, r if an inherently malicius trt is invlved, then punitive damages may be available. B. Special Rules f Liability 1. Negligent Inflictin f Emtinal Distress (NIED) In general, plaintiffs cannt recver fr NIED. Exceptins include: a. Zne f danger a plaintiff can recver fr NIED if: The plaintiff was within the zne f danger f the threatened physical impact; and The threat f physical impact caused emtinal distress. Exam Tip 10: Think f this as analgus t assault. b. Bystander recvery a bystander can recver fr NIED if the bystander: Is t the persn injured by the defendant; Was present at the scene f the injury; and the injury. Exam Tip 11: Lines f clseness may seem arbitrary, but draw these lines n the bar exam. c. Special relatinship Mishandling f a. Negligent medical infrmatin (e.g., a negligent misdiagnsis). d. Physical manifestatins sme jurisdictins still require sme physical manifestatin f distress, such as nausea, insmnia, r miscarriage. 2. Wrngful Death and Survival Actins a. Wrngful death A decedent s spuse r representative brings suit t recver lsses suffered by the spuse r representative as a result f the decedent s death (e.g., lss f supprt r lss f cnsrtium). b. Survival actins Brught by a representative f the decedent s estate n behalf f the decedent fr claims that the decedent wuld have had at the time f the decedent s death. Claims include damages resulting frm persnal injury r prperty damage. 3. Recvery fr Lss Arising frm Injury t Family Members lss f cnsrtium r cmpaninship. MBE Trts 2017 Themis Bar Review, LLC 29

4. Wrngful Life and Wrngful Birth Claims a. Wrngful life nt permitted in mst states. b. Wrngful birth many states d permit recvery. CHAPTER 12: NEGLIGENCE: VICARIOUS LIABILITY AND SPECIAL RULES OF LIABILITY A. Vicarius Liability when ne persn is held liable fr anther persn s negligence. 1. Respndeat Superir The emplyer is held vicariusly liable fr the negligence f an emplyee, if it ccurred within the. Distinctin: Emplyer s wn negligence v. emplyer s liability fr an emplyee s cnduct. Direct negligence the emplyer is liable fr the emplyer s wn negligence. Vicarius liability the emplyer is strictly liable fr the emplyee s actins. Example 32: A pizza cmpany hires bad drivers r prvides them with alchl befre their shift. Vicarius liability is nt applicable; the emplyer s wn actins are negligent. Vicarius liability wuld apply when, fr example, the pizza cmpany is as careful as pssible in the hiring, training, and supervising f its emplyees, yet ne emplyee decides, n his wn, cntrary t instructins, and withut the emplyer s knwledge, t cnsume alchl while delivering pizzas, and he negligently gets int an accident. a. Intentinal trts emplyers are generally nt liable fr the intentinal trts f emplyees, except when the emplyee s cnduct is within the scpe f emplyment, e.g., frce is in the emplyee s wrk. Example 33: A bar buncer beats up a custmer thinking he is serving the emplyer s interests. b. Frlic and detur Detur (minr deviatin frm the scpe f emplyment) the emplyer is liable. Frlic (majr deviatin frm the scpe f emplyment) the emplyer is nt liable. 2. Trts Cmmitted by Independent Cntractrs An emplyer is generally nt liable fr trts cmmitted by independent cntractrs. Example 34: Yu hire smene t paint yur huse while yu are n vacatin. The painter is negligent in the prcess and injures smene. Yu are nt liable, because the painter is an independent cntractr. 30 2017 Themis Review Bar, LLC MBE Trts

Hw t distinguish an independent cntractr frm an emplyee if the emplyer retains a right f ver the way that emplyee des the wrk, then the curts will treat that persn as an emplyee. An emplyer MAY be vicariusly liable fr the trts f independent cntractrs in the fllwing situatins: Inherently activities; duties; Operatr f premises has a duty t keep the premises safe fr the public; and Duty t cmply with safety statutes. 3. Business Partners can be liable fr the trts f ther business partners cmmitted within the scpe f the business s purpse. 4. Autmbile Owners a. Negligent entrustment an wner can be directly liable fr negligently entrusting a vehicle (r any ther dangerus bject) t smene wh is nt in the psitin t care fr it. b. Family-purpse dctrine the wner f an autmbile may be vicariusly liable fr the trtius acts f any family member driving the car with permissin. c. Owner liability statutes the wner f an autmbile may be vicariusly liable fr the trtius acts f anyne driving the car with permissin. 5. Parents and Children a. General rule parents generally are nt vicariusly liable fr their minr children s trts. b. Negligence f parents parents can be liable fr their wn negligence with respect t their children s cnduct. 6. Dram Shp Liability Hlds bar wners, bartenders, and even liable fr injuries caused when peple drink t much alchl and injure third parties Recgnized by many states in statutes r by case law Direct liability, nt vicarius liability 7. Indemnificatin Exam Tip 12: These laws hld the bar r scial hst liable IN ADDITION t the drunk driver, nt INSTEAD OF the drunk driver. The party held vicariusly liable may seek indemnificatin frm the party wh was directly respnsible. MBE Trts 2017 Themis Bar Review, LLC 31

B. Immunities 1. Federal and State Gvernments Traditinally, state and federal gvernments were immune frm trt liability. Immunity has been waived by statute. a. Federal Trt Claims Act The federal gvernment expressly immunity and allws itself t be sued fr certain kinds f trts. There are exceptins (i.e., situatins in which the federal gvernment maintains immunity). Editr's Nte 9: These exceptins include certain enumerated trts, discretinary functins, and traditinal gvernmental activities. b. State gvernments and municipalities Mst states have waived immunity t sme extent. Municipalities are generally gverned by the state trt claims statute. Gvernmental v. prprietary functins Gvernmental functins (e.g., plice, curt system) immunity applies. Prprietary functins (functins ften perfrmed by a private cmpany, e.g., utilities, parking lts) immunity has been waived. c. Gvernment fficials functins immunity applies. functins n immunity. Westfall Act precludes any persnal liability n the part f a federal emplyee under state trt law. 2. Intra-Family Immunities largely eviscerated; a family member can be sued fr negligently injuring anther family member. Cre parenting activities immunity still applies. 3. Charitable Immunity eliminated in mst states, thugh sme states still limit recvery. CHAPTER 13: NEGLIGENCE: SHARING LIABILITY AND DEFENSES A. Sharing Liability Amng Multiple Defendants 1. Jint and Several Liability Each f tw r mre defendants wh is fund liable fr a single and indivisible harm t the plaintiff is subject t liability t the plaintiff fr the entire harm. 32 2017 Themis Review Bar, LLC MBE Trts

Plaintiff can recver all f his damages frm any negligent party. Applicatins: Tw r mre trtfeasrs; Trtfeasrs acting in ; Alternative liability; Res ipsa lquitur is used against multiple defendants; Bth emplyer and are liable. In sme jurisdictins, a defendant is nt jintly and severally liable unless he is at least 10% at fault. Cntributin allws a defendant wh pays mre than his share f the ttal liability t recver frm the ther liable defendants. May be pr rata, r may be liable nly fr prprtinate share. 2. Indemnificatin a cmplete frm ne party t a party wh was frced t pay the damages. Example 35: An emplyer emplys an emplyee wh behaves negligently in the scpe f emplyment. The emplyer may be held liable fr the full amunt f damages due t vicarius liability but may seek indemnificatin frm the emplyee because the emplyer was nt at fault. Example 36: A retailer wh is held strictly liable fr selling a defective prduct may seek indemnificatin frm an upstream manufacturer wh was respnsible fr the defect. B. Defenses t Negligence 1. Cntributry Negligence If the plaintiff was negligent in sme way, that negligence cmpletely the plaintiff s recvery. Last clear chance dctrine allws a plaintiff t mitigate the cnsequences f her wn cntributry negligence by shwing that the defendant had the last clear chance t avid injuring the plaintiff but failed t d s. Example 37: A defendant driving dwn the street shuld nt feel free t run ver a pedestrian wh is negligently crssing the street n the thery that the pedestrian s cntributry negligence will relieve the defendant f liability. If the defendant had the last clear chance t avid the harm, then he shuld have dne s. 2. Cmparative Fault a plaintiff s negligence des nt cmpletely bar recvery but instead limits the plaintiff s ability t recver; mst jurisdictins have adpted this defense. MBE Trts 2017 Themis Bar Review, LLC 33