Multistate Torts Outline

8/12/2019 Multistate Torts Outline

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TORTSATTACK OVERVIEW

Intentional Torts Defenses

Battery

Assault

False Imprisonment

Intentional Infliction of Emotional Distress (IIED)

Trespass to Land

Trespass to Chattel

Conversion

Consent (Express or Implied)

Protective Privileges (SD, DO, DP)

Necessity Defenses

- Public Necessity (absolute)- Private Necessity (limited)

Recapture of Chattels

NB: Transferred intent (from person to person ORfrom tort to tort) can apply w/ Assault, Battery, FalseImprisonment, Trespass to Land, and Trespass to

Chattel

Damages are required for IIED (physical harm notreqd), Trespass to Chattel, and Conversion

Defamation Defenses

Defamation

Libel (Letter, but includes TV / radio broadcasts)Slander (Spoken)Slanderper se andnot per se- Statement re: matter of public concern or a public

figure or official? (2 more es)

* Hypo may also implicate False Light or Disclosure

Consent

Truth

Defamation Privileges

- Absolute Privileges (spouses;govt officials/officers)

- Qualified Privilege (publicinterest in encouraging candore.g. references, LORs)

Privacy Torts Defenses

False Light (**DP)

Disclosure (**DP, *NW)

Appropriation (*NW)

Intrusion to Seclusion

NB: Ps damages can be for just emotional damages(i.e. P doesnt have to show monetary loss).NB: Truth is not a defense for these.NB: Privacy actions do not survive death.

Consent (for all 4)

** Defamation Privileges (FL and D

only)- Absolute Privileges (spouses;

govt officials/officers;statements made in judicialproceedings by judge / jurors /counsel / witness / parties)

- Qualified Privilege (publicinterest in encouraging candor


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e.g. references)

* Newsworthiness Exception (A andD only)

- an exception only (i.e. not anaffirmative defense)

Economic Torts

Intentional Misrepresentation (Fraud, Deceit)

Negligent Misrepresentation

Intentional Interference with Business Relations

Nuisance Defenses

Nuisance Contributory Negligence (available ifP asserts a negligence theory and actednegligently in creating the nuisance)

Strict Liability & Products Liability Defenses

Claims for Injuries Caused byDomesticatedAnimals (if prior knowledge of vicious propensities;but not if dog bites trespasser on your own land)

Claims for Injuries by WildAnimals

Strict Liability forAbnormally Dangerous

ActivitiesStrict Liability for Products

- Remember: Products liability can be pursuedunder multiple theories: (1) strict liability; (2)negligence; (3) breach of warranty; etc. Sostrict liability is just one option!

Assumption of Risk (abolished by most

states)

Comparative Negligence (only if the JXapplies its comparative negligence rules

to strict liability)

NB: If P was a Trespasser

- Trespassers cannot generallyrecover under SL when injuredby Ds animal(s).

NEGLIGENCE Defenses

Negligent Infliction of Emotional Distress (NIED) Defenses


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TORTSBARBRI LECTURE OUTLINE

I. INTENTIONAL TORTS (7)

Of the ~34 torts Qs on MBE, just under 1/3 will be on intentional torts

A. 2 Impt. Principles1. In deciding whether a P has satisfied an element of a claim, ignore any

extreme sensitivity of the particular P.

2. There are no incapacity defenses in intentional torts.

(1) e.g. a child / mentally ill / drunk person can be held liable forbattery and any other intentional tort

B. Battery (2 elements)

1. E1: The D must commit aharmfuloroffensive (unpermitted / objectivestd.) contact / touching;

2. E2: The contact must be with the Plainti ff s person(which includesanything the P is holding or anything connected to the P) .

C. Assault (2 elements)

1. E1: The D must place the Plaintiff inreasonable apprehension

(1) Rule: Apprehension doesnt require fear;just means that you hadknowledge of the immediate battery.

(2) Rule (Unloaded Gun Scenario): If its an idle threat that couldnthave been carried out (e.g. unloaded gun), then if the Plaintiffknew that it was an idle threat / unloaded gun, then P has no claim;but if P didnt know, and it was reasonable to expect that the gun

was loaded, then P does have a claim)2. E2: The apprehension must be of an immediate battery.

(1) Rule: For immediacy, you need overt conduct. Words alone arenot enough. (The necessary conduct could be a menacing gesture,the pulling out of a weapon, etc.)

(2) Rule: If there is conduct, words can negate immediacy. (e.g. Dshakes his fist in Ps face but says, If you werent my best friend,Id punch you. / e.g.2. D takes out a gun, If you dont have mymoney by 5 pm, Ill be back to shoot you)

D. False Imprisonment (2 elements)

1. E1: The D must commit an act of restraint;

(1) Rule: A credible threat can be an act of restraint. (e.g. D takes outa gun and says, If you leave this room within the next 30 minutes,Ill shoot you is enough)

(2) Rule: An omission can be an act of restraint provided that therewas a preexisting duty between the D and P. (e.g. P is wheelchair-bound and requires assistance to get on and off plane, but after


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everyone gets off the plane, the crew members forget about her anddo nothing, so even though plane door is open, P is stuck there)

(3) Rule: The P must know of the confinement or be harmed by theconfinement for there to be false imprisonment. (i.e. so if P isoblivious to the confinement, theres no false imprisonment)

2. E2: The P must be confined to a bounded area.

(1) Rule: An area is bounded even though its not marked byboundaries (like walls or fences). The boundary can be defined byyour words (e.g. If you leave the park, Ill shoot you thebounded area is the park)

(2) Rule: An area is not considered bounded if there is a reasonablemeans of escape that the P can reasonably discover. If the onlyway out is harmful, humiliating, dangerous, or disgusting, then itdoesnt count as a reasonable way out. (e.g. P is locked in thebasement, and the basement has a rat-infested sewer pipe that Pcould use for an escape this is still false imprisonment)

(3) Rule: The duration of the confinement can be very short for it tostill be false imprisonment.

o NB: You dont need to show damages for False Imprisonment; the durationcan also be very short to still be False Imprisonment.

E. Intentional Infliction of Emotional Distress (2 elements)

Note: Unlike the other intentional torts, for THIS tort, D acting recklessly isenough for D to be liable.

1. E1: The D must engage inoutrageous conduct;

(1) Rule: Conduct is outrageous if it exceeds all bounds of decencytolerated in a civilized society.

(2) Rule: Mere insults are not outrageous. (BUT note that insults, aspart of a packaged deal, can be a part of outrageous conduct.)

(3) Markers of Outrageous Behavior:

(i) The conduct in question is continuous in nature (can pushcloser to being outrageous conduct);

(ii) The D is a common carrier or an innkeeper (i.e.transportation company or hotel/motel) (since these Ds areunderstood that theyre supposed to treat ppl courteously);

(iii) The P is a member of a fragile class (e.g. P is a child; P isan extremely elderly person; P is a pregnant woman);

(iv) Deliberately targeting anothers known sensitivities

2. E2: The P must suffer severe emotional distress.

(1) Rule: There is no particular evidentiary showing required toestablish severe emotional distress. (i.e. you dont have to show


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that youre on meds, that you saw a doctor, that youve missedwork, that you have physical symptoms, etc. etc.)

(2) TIP: If the question includes a ton of outrageous D behavior butthen includes something like: Pamela was mildly annoyed /briefly irritated / slightly peeved about Ds conduct thatnegates the second element.

Three Property-Related Intentional Torts: (i) Trespass to Land; (ii) Trespass to Chattel;(iii) Conversion

F. Trespass to Land (2 elements)

1. E1: The D must commit an act ofphysical invasion;

(1) 2 Ways to Commit an Act of Physical Invasion:

(i) D enters Ps property (Note: The D need not be aware thathe crossed into Ps land; its still physical invasion if its amistake (i.e. D didnt know))

(ii) D throws something into Ps land (Note: But an intangiblesubstance, like noises or lights or odors, dont count for atrespass; the thing that D throws into Ps land must bephysical)

2. E2: Ds act must interfere with Ps exclusive possession of land.

(1) Rule: The proper P is whoever is in legal possession of the landwho is not necessarily the owner.

(2) Rule: Your interest in the land includes the air above and the soilbelow (to a reasonable distance), so interference with those willalso be actionable trespasses.

G. Trespass to Chattels and Conversion

Both torts involve some form of interference with Ps possessory interest in personalproperty)

1. Trespass to Chattels civil version of vandalism (deliberate damage)

(1) If the interference is relatively minor, then use trespass to chattels

(2) Remedy for Trespass to Chattels: Cost of repair of the item.

2. Conversion civil version of theft

(1) If the interference is significant, then use conversion

(2) Special Remedy for Conversion: Full market value of the item

not merely the cost of rental or repair.


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H. Affirmative Defenses to Intentional Torts (3): 1. Consent, 2. ProtectivePrivileges, 3. Necessity Defenses

1. CONSENT

(1) Q: Did the P have legal capacity? Rule: Only someone with legalcapacity can give valid consent. (e.g. drunk guy who says goahead and hit me doesnt qualify as valid consent) [drunk person;

developmentally disabled person; child]

(i) But Note: A child or developmentally-disabled person canconsent to things that theyre capable of understanding.(e.g. 2 boys can consent to wrestle if they agreed to wrestle;its age-appropriate)

(2) 2 Kinds of Consent:

(i) Express consenta declaration granting the D permissionto behave a certain way that would otherwise be a tort;

(1) Exception **: Express consent is not valid if it wasobtained fraudulently or through duress.

(ii) Implied consent

(1) Implied consent by custom (i.e. P goes to a place orengages in an activity where certain invasions areroutine, then it is assumed that P consented to thoseinvasions);

(2) Ds reasonable interpretation of Ps objective

conduct and surrounding circumstances (i.e. Psbody-language consent)

(3) Scope Rule: If D exceeds the scope of consent, D is still liable forthe intentional tort. (e.g. D doctor gets consent to do surgery onleg but then D doctor also does surgery on another part of the bodythat isnt close to the leg counts as battery)

2. THE PROTECTIVE PRIVILEGES (Self Defense; Defense of Others;

Defense of Property)

(1) Timing Question: You may respond to a threat only when thethreat is imminent or in progress. You cant use these defenses ifthe threat is over. No revenge!!!

(2) Need a reasonable belief that the threat was genuine (i.e. D doesntlose the privilege if D made a reasonable mistake)

(3) How much force was used? The response was no more thannecessary (i.e. D can only use proportional force).


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(i) Rule: You may NEVER use deadly force to merely protectyour property.

3. THE NECESSITY DEFENSES (2 of these, and they only relate to the 3intentional property torts)

(1) Public Necessity Defense

(i) Public necessity arises when D invades Ps property in anemergency to protect the community as a whole (or asignificant group of people) (i.e. basically involvessituations where D tries to save the day in an emergencyand commits intentional property torts in the attempt tosave the city / people D will be able to use the publicnecessity defense)

(2) Private Necessity Defense

(i) D invades Ps property interest to protect an interest of his

own. [is only a LIMITED defense]

(1) Rule: In a private necessity defense, D remainsliable to pay for the actual damage to the property(i.e. compensatory damages);

(2) Rule: A private necessity D is not liable fornominal or punitive damages.

(3) Rule: As long as the emergency continues, the Pcannot throw the D off the land (i.e. cannot evict or

eject D off the land). If P throws D out, then P willbe liable to D for any harm that was caused to D asa result.

(4) E.g. D is a hiker and theres a sudden blizzard , so Dbreaks into a lone farmhouse and takes shelter there;the owner, P, sues D for trespass to land and so Dwill pay for the window; D will still have to pay forthe broken window


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II. DEFAMATION

A. 3 Elements of Defamation: [DPD*P]

1. E1: Defamatory Statement: D must make a defamatory statementspecifically identifying P;

(1) Rule: A statement is considered defamatory when it adversely

affects reputation.

(2) Rule: Mere name-calling is not considered defamatory. Younormally need an allegation of fact that reflects negatively on atrait of the persons character (e.g. dishonesty, incompetence,disloyalty; immorality).

(3) Rule: To identify P, you need not identify P by name. As long asyou say enough to make it reasonably easy to identify the specificinformation.

(4) Rule: In the U.S., P must be a living person to be defamed. (e.g.Michael Jacksons estate wouldnt be able to sue you for

defamation if you started saying that M.J. sexually abused a bunchof kids).

2. E2: Publication: There must be publication of that statement.

(1) Rule: This means that the defamatory statement must be sharedwith at least one other person other than the P. (so just 1 personbeyond the P is enough for D to be on the hook)

(2) Rule: Publication can be accidental / inadvertent / negligent. Itdoesnt have to be intentional.

3. E3: Damage: There must be damage to Ps reputation.

(1) Libel general damages are presumed

(i) i.e. P can recover damages for the general injury to hisreputation w/o offering any proof

(2) Slander

(i) Damages are presumed ONLY if Slander Per Se

(ii) If Slander Not Per Se, then P must prove a specificeconomic loss as damages; if P cant, he can only recovernominal damages.

4. **E4: Plaintiffs Status will determine what P has to show for Dsfault w/ re: to falsity:

(1) If P is a public figure or public official:

(i) P must show that when D made the statement, Dknew itwas false OR made it w/reckless disregard for the truth

(2) If P is a private person / figure:


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(i) If Ds statement was re: a matter of public concern Pmust showD wasnegligent w/ re: to falsity of statement.

(ii) If statement had to do w/ private concern P doesnthave to prove anything further; just Elements 1 - 3

B. Two Forms of Defamation (Libel and Slander)

1. Libel: the defamatory statement is written (in a letter, email, etc.)

(1) Note: TV broadcasts and radio broadcasts are considered libel.

2. Slander: an oral / spoken defamatory statement

(1) Slander per se: for this one, you dont have to offer any evidenceof damages; slander per se involves any statement that falls within4 topics:

(i) statement re: Ps business or professional reputation;

(ii) statement that P has committed a serious crime (of moral

turpitude);

(iii) statement that imputes unchastity on a woman;

(iv) statement that P has a loathsome disease (e.g. leprosy;venereal disease)

(2) Slander not per se: is the only case where you have to provedamage to get to the jury

(i) For damage, you have to prove economic harm (e.g. you

lost your job, nobodys come to your restaurant, etc.)

C. Special Case: Where the Statement Bears on a Matter of Public Concern

1. E.g. whether or not a mayor is taking bribes; whether or not an athlete istaking performance-enhancing drugs

2. In these cases, there are 2 extra elements (so 5 total):

(1) Falsity: The P must show that the statement is false.

(2) Fault:

(i) If the P is a public figure, then P must show that D knewthe statement was false and made it anyway or that D

recklessly disseminated the falsehood (actual malice orrecklessness);

(ii) If the P is a private figure, it is sufficient to show that Ddisseminated the falsehood negligently.

D. Affirmative Defenses to Defamation (3): 1. Consent, 2. Truth, 3. The

Defamation Privileges (Absolute and Qualified)


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1. Consent

2. Truth

(1) Note: Remember, D bears the burden of proof on this b/c its anaffirmative defense.

3. Defamation Privileges

(1) Absolute Privileges: [based on the identity of D]

(i) Spouses: If a married person says something defamatoryto their spouse, that doesnt count as defamation.

(ii) Federal and State Govt Officers and Officials,Including Legislative and Executive Officials (in their

official capacity): also applies to legislative and executiveofficials, so if they read something into the record on thefloor of the legislature, they are absolutely privileged, evenif you show malice, abuse, etc.

(iii) Judicial Proceedings Context: All statements made by thejudge, jurors, counsel, witness, or parties in judicialproceedings are absolutely privileged.

(2) Qualified Privilege:

(i) Arises when there is a public interest in encouragingcandor. (e.g. references / recommendations; statementsmade to the police)

(ii) 2 Reqts for Qualified Privilege:

(1) D must have a reasonable, good faith basis to havemade the mistaken statement; and

(2) D must confine statement(s) to stuff thats relevant

(e.g. it wouldnt be relevant for a professor giving arecommendation to add at the end that the studenthas leprosy).


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III. PRIVACY TORTS ((1) Appropriation; (2) Disclosure; (3) Intrusion; (4) False Light)

A. Appropriation

1. D uses the Ps name or image for a commercial purpose.

(1) E.g. Cereal manufacturer puts Tom Bradys face on their box.

(2) Caution: This cause of action isnt limited to celebrities.

2. Newsworthiness exception applies (i.e. so if newspaper puts picture ofTom Brady on cover, they wont be liable).

3. Caveat: The mere use of a personalitys name in a TV show or magazinestory, even if motivated by profit, isnt enough for liability. Must showevidence that the name was used in connection with the promotion oradvertisement of the product, service, or program.

B. Intrusion Upon Seclusion

1. An invasion of the Ps seclusion in a way that would be highly offensiveto the average person

(1) E.g. wiretapping, secret video surveillance, using binoculars topeer into someones home.

2. Caution: P must be in a place where they have a reasonable expectation ofprivacy (i.e. P cant be in a public place).

3. No newsworthiness exception

C. Disclosure

1. The widespread dissemination of confidential information about P thatwould be highly offensive to an average person

(1) E.g. receptionist mails your medical records to everyone at yourlaw firm

(2) Newsworthiness exception applies (i.e. so if newspaper were topublish the medical records or other private facts about X,newspaper not liable).

(3) Caution **: The information must be truly private. (e.g. P is a gayman, but even though his friends and personal circles know this, Pisnt out at work; on day, a work person sees P at a rally holdinga sign saying, Im gay and dont want to be discriminatedagainst. The work person tells everyone at work. This doesntcount as Disclosure)

D. False Light

1. Widespread dissemination of a material falsehood about P that would behighly offensive to an average person.

2. No newsworthiness exception

3. False Light vs. Defamation

(1) The same conduct often gives rise to both Defamation and FalseLight. However, the damages you get are different.


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(i) In Defamation P gets economic damages

(ii) In False Light P gets damages for the social / emotionalharm (i.e. no one wants to hang out with P anymore, etc.).

(2) False Light can also be broader than Defamation because thematerial falsehood need not be defamatory.

(i) E.g. D tells everyone that P is a devout Catholic, but P isJewish. False Light but not Defamation.

(3) Like with Defamation, if the published matter is in the publicinterest, then P must show malice or recklessness on the part of D

4. A fact will be deemed to present P in a false light if it attributes to him:

(1) Views P does not hold, or

(2) Actions P did not take.

E. Affirmative Defenses to the Privacy Torts (2): 1. Consent (for all 4), 2. the

Defamation Privileges (only for Disclosure and False Light)

1. Consent (defense to all 4)

2. The Defamation Privileges (both Absolute and Qualified)

(1) But these only apply toDisclosure andFalse Light


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IV. Three Strict Liability Causes of Action

Strict Liability: P can establish Ds liability for Ps injuries without having to provethat D acted negligently.

Remember: No amount of due care will relieve D of liability under strict liability.

Defenses to Strict Liability:

o assumption of risk (abolished by most states);o comparative negligence rules (if the JX applies its comparative negligence rules

to strict liability)

A. Claims for Injuries Caused by Animals

1. Claims for Injuries byDomesticatedAnimals (e.g. pets and livestock):

(1) General Rule: You are not strictly liable for an injury caused byyour animal.

(2) Exception: You will be strictly liable if you have prior knowledgeof their vicious propensities. (e.g. if your dog has previously bittensomeone, you have knowledge)

(i) Exception to Exception: You will not be strictly liable ifyour dog bites a trespasser on your own land.

2. Claims for Injuries by WildAnimals:

(1) General Rule: You are strictly liable for any wild animals that youkeep and that cause injury.

(2) Note: Even if D puts a million protective measures, that doesntmatter. Strict liability means that youre liable, no matter what.

B. Strict Liability for Abnormally Dangerous Activities

1. 2 Part Test for Abnormally Dangerous Activities:(1) The activity must be one that causes a foreseeable risk of serious

harm to persons or property even when reasonable care isexercised; and

(2) The activity must be uncommon in the area / community where Dpursues the activity.

o Often arises with explosives, toxic, and/or biohazardous materials;e.g. blasting with dynamite; anything involving hazardouschemicals or biological materials; anything involving high-doseradiation and nuclear activity.

2. Remember: The injury must result from the abnormally dangerous natureof the activity.

3. In these cases, D is strictly liable for harm caused by the activity.

C. Strict Liability for Products ****

o General SL for Products Rule: A commercial seller is strictly liable forany defective condition thats unreasonably dangerous that was existing at thetime of sale.


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o Impt Note: If someone gets injured by a product, they may have multipleclaims. They may have (1) a strict liability claim; (2) a negligence claim; (3)a breach of warranty claim, etc. So read the call of the Q carefully.

o Who can be Strict Products Liability P? Buyers of the product,buyersfamily, friends, employees, and any foreseeable bystanders. There need notbe privity btwn P and D.

Remember, if P is a bystander who was injured after trying to rescue,he is considered to be a foreseeable bystander (since danger invitesrescue) and can recover for injury on strict products liability.

o Who can be Strict Products Liability D? Any commercial seller thats on thedistribution chain (retailer, wholesaler, distributor, manufacturer)

o Remember: One of the elements of a prima facie case for products liabilitybased on strict liability is causation of some harm to P by a defective product.

1. 4 Elements for Strict Liability Products:

(1) E1: D was a merchant (someone who routinely deals in

products of this type);

(i) Rule: Casual sellers (like in garage sale) are not merchants.

(ii) Rule: Service providers who sell, as part of their services,certain products are notconsidered merchants.

(iii) Rule: Commercial lessors (who rent goods, like carrentals) are considered to be merchants.

(iv) Rule: Every entity in a distribution chain is a merchant,and every entity can be held strictly liable. P doesnt haveto necessarily sue the entity with which it dealt directly. Pcan go behind the retailer and sue the wholesaler and themanufacturer. [i.e. there is no privity requirement inStrict Liability]

(2) E2: The product was defective;

(i) 3 Kinds of Product Defects:

(1) Manufacturing defecta product has amanufacturing defect if it differs from all the otherproducts that came off the same assembly line in a

way that makes it more dangerous than consumerswould expect (i.e. the 1 in a million)

(2) Design defecta product has a design defect if Pcan show that there was another way that theproduct couldve been built that meets 3 conditions:(1) theres a safer possible design; (2) that saferdesign must be cost-effective (the same or only a


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teeny more expensive); and (3) the alternativedesign must be practical (i.e. it cant defeat thepurpose of the product).

(A) Note: Failure to conform to a governmentregulation proves the design defect.

(B) Note 2: If a product has a design defect, youcant avoid strict liability just by slapping awarning on it.

(3) Information defecta product has an informationdefect if it has risks that cannot be designed out andthe risks are not apparent to consumers andtheproduct lacks adequate warning.

(A) An adequate warning has to be prominentand call the consumers attention. The

warning may have to be bilingual. Awarning may have to use pictures instead ofwords.

(3) E3: The product must not have been altered since leaving the

hands of the D (i.e. the defect existed when it left Ds hands) .

(i) If the product moved in ordinary channels of distribution,theres a presumption that the product was not altered (i.e.that the defect existed when it left Ds hands). Thus, thispresumption shifts the burden to the D.

(4) E4: The P must be making a foreseeable use of the product at

the time of the injury.

(i) Rule: P doesnt have to be using the product for theintended purpose. As long as it was a foreseeable use ofthe product, thats enough. (e.g. standing on a chair toreach something is a foreseeable use of the chair)

2. Affirmative Defense for Strict Liability 1: ComparativeResponsibility

(1) Comparative Responsibility: any P fault will result in assignmentof a percentage and will reduce Ps recovery

(2) Assumption of Risk:

(i) Can be a complete defense to strict products liability.


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V. NEGLIGENCE

** Negligence is by far the most impt topic for the bar exam in torts and most heavilytested. **

4 Elements: [Duty, Breach, Causation, and Damage]

1. D had a duty;2. D breached that duty;

3. Causation ((i) factual cause and (ii) proximate cause);

4. Damage.

A. Element 1: DUTY [most impt element]

1. Dutythe obligation to take risk-reducing precautions.

2. To whom is a duty owed?

(1) To foreseeable victims. (Thus, an unforeseeable victim alwaysloses a Negligence case.)

E.g. Remember Palsgraf lady at RR station was wayyytoo far away for D to think that she was going to get hurt.

(i) Exception: Rescuers A rescuer is owed a duty of care.Rescuers are always foreseeable victims.

(2) Privity of contract is not required to find liability for negligence. Itonly matters that P was a foreseeable plaintiff.

3. How much care do you owe?

(1) You must exercise the care that would be exercised by a

reasonably prudent person acting under similar circumstances.(2) The reasonably prudent person is an OBJECTIVE standard, so we

make no allowances for Ds particular, non-physical shortcomings.

(i) Note: Its an inflexible standard, and it applies to everyone even if theyre stupid people, mentally disabled people,novices, amateurs, etc. So the bar exam will load up the Qswith these people, but you must remember that just b/c theDs have those shortcomings doesnt change the fact thattheyre held to the reasonable prudent person standard innegligence. You should neverpick the choice that says

theyre not liable b/c theyre doing the best they can.

(3) Exception: If D has any superior skill or knowledge, the standardbecomes a reasonably prudent person with that superior skill orknowledge.

(4) Exception: The standard DOES take into account Ds physicalcharacteristics (if the facts make them relevant). So if the facts saythat D is blind and the blindness is relevant, then the standard


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becomes: ordinary and reasonable care that a person with the Dsdisability would have exercised / reasonably prudent blind person.

4. 6 Special Duty of Care Standard Rules (to use instead of the General,Reasonably Prudent Person Standard):

On the essay exam, if these dont apply, then you would write:Because none of the special duty of care standards are at issue here,

the court will apply the general standard ofreasonably prudent personacting under similar circumstances.

(1) Negligence Claims Against Children

(i) Children under the age of 5 are legally incapable ofnegligence.

(ii) Children from age 5age 18 are held to the standard of achild with similar age, experience, and intelligence actingunder similar circumstances. [very flexible standard, verypro-D]

(1) Exception: When a child is engaging in an adultactivity, you use the general reasonably prudentperson standard. (e.g. operating a vehicle w/ anenginea car, tractor, jet ski, snowmobile, truck)

(2) The Standard of Care for Professionals (i.e. Doctor, Lawyer,Architect, Accountant, etc.)

(i) Rule: A professional is held to the care of the average /reputable member of his profession performing similarservices. The custom of the profession (nationally) sets thestandard of care. [national standard of care]

(1) For the most part, youll need an expert to explainwhat is customarily done in the professionnationally.

(ii) 2 Kinds of Errors Doctors Typically Make: (1) an error inexecution [Note: these are easy cases b/c the avg doctor iscareful and doesnt commit errors in execution]; and (2) anerror in a diagnosis or a treatment plan [these are the hardcases b/c they involve judgment, etc.]

(1) Damages Note: If a doctor negligently misdiagnosesa Plaintiff, and that causes the Plaintiff physicalinjury (e.g. because their physical medical conditioncontinued), that is enough to meet the damagerequirement of negligence.


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(iii) Generally, a doctor has a duty to inform the patient ofmaterial risks of a procedure; a material risk is a risk that areasonable P would want to know.

(3) Premises Liability Rules

(i) The Situation: When someone enters a piece of real estateor land (land), and while there, they get hurt by adangerous condition on the property. The plaintiff is theentrant (entrant), and the possessor of the land is thedefendant.

(ii) Q: What duty does the possessor of the land owe theentrant to protect the entrant from dangerous conditions onthe property?

4 Standards for Premises Liability, Depending on Type

of P Entrant Were Dealing With:

(1) Undiscovered trespassers on the land:

(A) Duty: The possessor of the land does notowe a duty of care to these entrants, so thisP always loses the case.

(2) Discovered or anticipated trespassers: includesppl that the possessor knows or should know wouldbe on the land (e.g. when the exam says that there

have been trespassers in the past, like ppl who usedyour land to take a shortcut, etc.).

(A) Duty: The possessor is obligated to protectthe discovered or anticipated trespasser Psonly from those conditions on the land thatmeet a 4-part test:

1. Theres only a duty if the condition is anartificial condition (a condition thatwas built or constructed by humans).[So a possessor will never be liable to aP who got hurt by a natural condition onthe land, such as icy conditions in Dspond]

2. The condition must be highlydangerous [so a moderately dangerouscondition will not lead to any liability]


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3. The condition must be concealed fromthe trespasser [so no liability for D ifthe condition was open and obvious]

4. The condition must be one of which theD possessor had prior knowledge

Summary: With respect to any

discovered / anticipated trespasser P,D owes only a duty to protect them

from any known, man-made death

traps on Ds land.

(3) Licensees: Ps who enter Ds land with permissionbut do not confer any economic benefit on thepossessor. (e.g. a social guest, ppl who come toyour door to sell things or Jehovas Witnesses orpoliticians seeking signatures, etc.)

(A) Duty: The possessor must protect these Psfrom a condition that is (i) concealed and(ii) of which D had prior knowledge.

(4) Invitees: Ps who enter Ds land with permissionand confer an economic benefit (e.g. customer of abusiness) orthe property is open to the public atlarge (e.g. person at the airport picking up a friend,person at a church, etc.).

(A) Duty: The possessor must protect these Psfrom a condition that is (i) concealed and

(ii) of which D had prior knowledge orcould have discovered through a

reasonable inspection.

Impt Note: Even if P is initially a licensee or invitee, Ps legalstatus w/ re: to the property can change if P loses the status byexceeding the scope of invitationi.e. if P goes onto a portionof the property where their invitation cannot reasonably be saidto extend.

Special Rules re: Premises Liability

o Firefighters and police officers can never recover foran injury that is an inherent risk of their job. [Forfirefighters, its an inherent risk for them to get burned,no matter how.]

o Attractive Nuisance Doctrine: A trespassing child istreated more generously than adult trespassers. A


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possessor of land owes a duty of reasonable prudence toprotect them from artificial conditions on the land.

TEST: Possessor of land is liable for injury totrespassing children if:

(1) An artificial, dangerous condition exists;

(2) D knows or should know that children are

likely to trespass / are on the land;

(3) the child (subjectively) fails to realize therisk or appreciate the danger involved w/ theartificial condition; and

(4) the burden of protecting children from therisk of harm outweighs the utility ofmaintaining the artificial condition.

(So look out for kid magnets swing sets,pools, trampolines on your land; if D has this,then he/she should have taken reasonable

prudence to protect the children)o Landowners Duty re: his Activities on his Land:

A landowner has a duty to exercise reasonablecare with respect to his own activities on theland and to control the conduct of others on hisproperty (i.e. licensees/guests or invitees) so asto avoid unreasonable risk of harm to thoseoutside the property.

2 Ways Premises Liability Ds Can Satisfy their Duty:

o (1) D fixed the problem / dangerous condition

o (2) D gave P a warning (e.g. putting those yellow A-shaped signs that say: Warning Wet Floor)

Note: So if an answer choice says somethinglike, Deb is not liable to Pete b/c Deb gavePete a warning about the icy steps / Pete canrecover unless Deb gave him a warning thatsa potentially good answer choice.

(4) Statutory Standards of Care (Negligence Per Se a presumptionof negligence)

(i) Scenario: P borrows a statute and says that since D

violated that statute, this is conclusive evidence that Dbreached his duty of care. To successfully borrow thestatute, P must show 2 things:

(1) Type of accident that occurred was the type that thestatute was trying to prevent;


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(2) P was in the class of persons that the statute wastrying to protect.

(ii) Two Exceptions [where the statutory violation is excusedand doesnt create a presumption of negligence]:

(1) There was an emergency, making Ds compliancewith the statute more dangerous than violation ofthe statute.

(A) E.g. Dave crosses a double-yellow line toavoid hitting a little girl and then hit Ps car.You dont let P borrow the statute.

(2) Statutory compliance was impossible.

(A) E.g. Dave crossed a red light when he had aheart attack. You dont let P borrow.

(iii) Remember: If P fails the 2-part test, it just means P cantborrow the statute to establish that D violated his duty ofcare, but it doesnt mean that you end your analysis!!! Itjust means that youll have to use the reasonably prudentperson standard in the analysis.

(5) Common Carrier / Innkeeper:

Common carriers and innkeepers owe its passengers / guests ahigh duty of care and therefore would be liable for a slight

negligence.

(6) Duties to Act Affirmatively

(i) General Rule: There is no duty to rescue.

(1) E.g. the Olympic swimmer has no duty to rescue thedrowning baby.

(ii) 3 Exceptions: [where D has an affirmative duty to actreasonably under the circumstances]

(1) Exception 1:

(A) If there is a preexisting relationship btwn Dand P (e.g. business/invitee;employer/employee; commoncarrier/passenger; 2 friends out to dinnertogether), there is a duty to act reasonably


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under the circumstances, which mightinvolve a duty to act.

When the bailment is for the sole benefit of thebailee (a gratuitous bailment), the bailor has aduty to inform the bailee ofknown dangerousdefects

E.g. if D let P borrow his car for P to dohis own thing (i.e. gratuitous bailment),D has a duty to inform P of any knowndangerous defects or conditions in hiscar, so failure to ensure that P was madeaware of that is negligence.

(2) Special Rule: Rescuing D: If D chooses to rescue,D has to do so reasonably. So D may be liable if hecauses harm to P in Ds attempt to rescue P.

(A) ExceptionGood Samaritan Laws (passedby some states) but on the MBE, assumethat there is NO Good Samaritan Law,unless exam Q expressly states that there is.

(3) Exception 3: Even if Ds actions werentnegligent, if Ds actions placed P in peril or causedP injury, D has a duty to make reasonable efforts torescue the imperiled P or render aid to P.

(6) Negligent Infliction of Emotional Distress

(i) Impt Note: NIED only arises when (i) D has violated someother duty of care and (ii) P has not sustained any directtrauma to his body.

(ii) Three Scenarios for NIED:

(1) Near-Miss Fact Pattern:

(A) The negligent D doesnt inflict trauma onPs body but almost did. (e.g. D runs a redlight and misses pedestrian by 1 foot).

(B) P can recover if P can show that (1) P was inthe zone of physical danger and (2) P musthave subsequent physical manifestations ofhis stress

(2) The Bystander Case:


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(A) The negligent D seriously injures or killsTP, and P is upset about the injury or deathof TP.

(B) P can recover if P (1) is a close familymember of TP (parent, child, or spouse) and(2) sees it while it happens.

(C) Note: The Bystander Case brought by P is aseparate claim from the valid claim of theTP who is killed, as TPs estate can bring aWrongful Death Action against D.

(3) Relationship Cases:

(A) D and P are in a pre-existing businessrelationship and careless performance of thebusiness will foreseeably distress the

customer.

(B) E.g. Medical patient gets an erroneous labresult from a medical lab saying he hascancer or HIV, causing patient P lots ofstress

(C) E.g. Funeral hall loses the body

B. Element 2: BREACH

1. P must identify, with specificity, what D did wrong or failed to do and

explain why a reasonable person would have done it differently.2. Res Ipsa Loquitur

(1) Res Ipsa Loquitur allows the trier of fact to infer negligence simplyfrom the fact that a particular injury occurred.

(2) It is used by a P who lacks info and cant pin-point what D didwrong / how D breached his duty against P.

(3) P must show 2 things to useRes Ipsa Loquitur:

(i) That the accident that occurred is a type that wouldnotnormally occur unless someone was negligent; and

(ii) An accident of this type wouldnormally be due to thenegligence of someone in Ds position.

(1) This is shown by showing that D had exclusivecontrol over the injury-causing instrumentality.


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(2) Note: Res Ipsa will normally not apply when morethan one party may have been in control of theinstrumentality causing injury.

(A) Exception: Res ipsa is allowed to be used ina surgical setting against a team ofphysicians (like where one leaves a sponge).

(4) Effect ofRes Ipsa Loquitur: Is used to get you to the jury on theissue of breach but doesnt necessarily mean P will win on thenegligence claim.

(i) But DOES mean that tort P will avoid a Ds motion for adirected verdict, since Res Ipsa will allow an inference thatthere was BOTH a DUTY and a BREACH.

C. Element 3: CAUSATION (i. Factual Causation; then ii. ProximateCausation)

1. Factual Causation

(1) P must establish a link btwn Ds breach and Ps injury. (Note:Defendants breach is whats the factual cause notthe D) (Note2: Always speak of a factual cause, not the factual cause.)

(2) The But-For Test:

(i) P must convince us that but-for Ds breach, P wouldnthave been injured.

(ii) Exceptions:

(1) Mingled Causes: 2 destructive forces mingletogether (e.g. 2 fires meet up )

(A) Here, use the Substantial Factor Test: Abreach is a substantial factor if it wascapable of causing the injury by itself. (andif theres multiple Ds who breached andmeet this test, then those Ds will be heldjointly and severally liable to P)

(2) Unascertainable Causes: e.g. 3 hunters, 2 of them

shoot and hit P in the eye, and they cant tell whosebullet hit Ps eye.

(A) The burden of proof shifts to Ds to provethat they did not cause the harm, and if theycant do that, P wins. And if both of themcant prove they didnt do it, then theyrejointly liable.


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2. Proximate Causation (think fairness)

(1) Foreseeability Test:

(i) Ds should be on the hook only for the foreseeableconsequences of their actions

Two Types of Proximate Cause Qs Tested on Bar Exam:

(ii) Direct Cause Qs [the easy Qs]

(1) D suffers breach and P suffers harm immediately after that(i.e. nothing happens in between) so the harm caused isforeseeable, and weve got proximate cause.

(2) The only time we wont have proximate cause in thesecases is if the harm caused is freakish or bizarre

(iii) Indirect Cause Qs [more common on bar exam]:

(1) D breaches, something happens in the middle of the story,and then after that, the P suffers the full measure of harm.

(A) The something that happens in the middle ofthe story may or may not constitute asuperseding intervening force that breaksthe causal connection btwn Ds conduct andPs injury, relieving D from liability.

(2) The Well-Settled Quartet (i.e. cases where courts hold

that there IS proximate cause):

(A) Intervening Medical Malpractice: D runs a redlight, runs over P, and breaks Ps legs. At hospital,doctor puts cast too tightly and has to amputate Pslegs. Result: D, who ran the red light, is liablefor the amputated legs.

[Note: Dont forget that the doctor here is alsoliable for his medical practice, separate andapart from Ds negligence in running over Pslegs.]

(B) Intervening Negligent Rescue: D runs a red light,runs over P. Then, Good Samaritan pulls P to sideof road and dislocates Ps shoulder. Result: D isliable for the dislocated shoulder.

(C) Intervening Reaction or Protection Force: Druns a red light and enters an intersection crowded


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with lots of pedestrians and hits 1 P; to protectthemselves, they stampede, and one of them stepson the Ps face and disfigures him. Result: D isalso liable for Ps disfigured face.

(D) Subsequent Disease or Accident: D runs a redlight, runs over P, P goes to hospital, P falls fromcrutches and breaks arm. Result: D is also liablefor Ps broken arm.

o Criminal Acts and Intentional Torts of Third

Persons: ARE foreseeable intervening forces if Dsnegligence created a foreseeable risk that they wouldoccur (e.g. D failed to lock the door to the house D wascleaning, which created a risk of burglary asubsequent burglary will not cut off Ds negligenceliability)

(3) If you see an indirect cause fact pattern that doesnt involve1 of the 4 settled scenarios where courts find proximatecause, ask yourself: What is it about Ds conduct that wasa breach, and why am I worried about it? Then, look at theendi.e. what happened to P.

(A) If theyre the same, then proximate cause.

(B) If not the same, then no proximate cause.

D. Element 4: DAMAGES

1. P must show that Ds negligent conduct caused damage to Ps person orproperty. Damages are not presumedthere must be actual harm orinjury.

(1) For property damage, measure of damages:

(i) Reasonable cost of repair;

(ii) But if the property has been almost or completely destroyed FMV at time of injury

2. Nominal damages are not allowed for negligence.

3. Punitive damages generally are not recoverable in negligence casesunless Ds conduct was reckless, malicious, or willful and wanton.

4. Egg-Shell Skull Principle: [Applies to ALL torts!!! Not just negligence!]

(1) Once a P establishes the other elements of negligence (includingcausation), then P recovers for all damages suffered, even if theyare surprisingly large in scope. i.e. you take your P as you findthem


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5. Avoidable Consequences Rule:

(1) In personal injury cases, Plaintiff has a duty to take reasonablesteps to mitigate damages (i.e. has a duty to seek appropriatetreatment to effect healing and prevent aggravation of the injury).Failure to do so will preclude recovery for any particular item ofinjury that occurs or is aggravated due to the failure to mitigate.

(i) Caveat: If P is a child and and it was his parentsnegligence that kept him from seeking medical help, then inan action against a third party (D), the childs parentsnegligence is not imputed to the plaintiff child.

6. Recovering Damages for Emotional Distress:

(1) Recovery for emotional distress is restricted when there is no otherinjury caused by the breach. But recovery for emotional distress isallowed when the tort also causes physical injury of some sort.


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E. Affirmative Defenses in Negligence:

1. Contributory Negligence and Implied Assumption of the Risk

(1) Both doctrines have been abolished in majority of states

(i) The MBE reserves the right on these, but they haventtested much, if at all, on them recently

(2) Traditional Contributory Negligence Rule (largely abolished):Ps negligence, no matter how slight, is total bar to recovery.

(i) Exceptions: A negligent P can still recover against D if:

(1) Last Clear Chance Doctrine: If D had the last clearchance to avoid Ps harm and failed to do so.

(2) If Ds conduct was reckless and wanton.

(3) Assumption of Risk: to have assumed the risk, either expressly orimpliedly, P must have known of the risk and voluntarily assumedit.

2. Comparative Negligence (*will be on the exam*)

(1) D may introduce evidence that P failed to exercise reasonable carefor his own safety; Ps are also obligated to observe self-protectingstatutes (e.g. the statute that prohibits jay-walking so that theydont get hit by a car)

(2) If P has failed to exercise reasonable care for his own safety or hasviolated a self-protecting statute, D can introduce evidence of that,and the jury will be instructed to assign a percentage of

responsibility to the two parties in the case, and the Ps recoverywill be reduced based on Ps percentage of fault.

(3) Pure Comparative Negligence [majority]

(i) Just go by the numbers (e.g. a 90% faulty P will still get10% of the proven damages)

(4) Modified Comparative Negligence [minority]

(i) P fault over 50% becomes a bar, and P recovers nothing.


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VI. NUISANCE

A. Substantialandunreasonable interference with Ps use and enjoyment of hisproperty.

1. Unreasonable interference: To be an unreasonable interference, theseverity of the inflicted injury to P must outweigh the utility of Dsconduct / interference.

2. Substantialinterference: The substantial interference that results willnot be characterized as substantial if it is merely the result ofPsspecialized use of his own property.

B. A nuisance can be established no matter the Ds state of mind (i.e. D can be actingintentionally, negligently, or even without any fault in cases where D is engagedin an abnormally dangerous activity, like when wild animals or abnormallydangerous animals are involved).

C. The only test is if the degree of interference is so great and unreasonable that theP should not have to bare it.

D. Many nuisance cases involve incompatible land uses.

E. While not conclusive, if Ds conduct was consistent with what a zoning ordinancepermits, that is relevant evidence that it is not a nuisance.

F. Potential Remedies: money damages; injunctive relief


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VII. ECONOMIC TORTS

A. Misrepresentation

1. Intentional Misrepresentation (fraud, deceit):

(1) D misrepresents a past or present material fact

(2) D knows or believes the misrepresentation is false

(3) D intends to induce P to act or refrain from acting in reliance onthe misrepresentation

(4) P actually and justifiably relies on Ds misrepresentation

(5) DamagesP must suffer monetary loss

2. Negligent Misrepresentation:

(1) D misrepresents a past or present material fact in a business orprofessional capacity

(2) Breach of duty of care owed to a particular P (i.e. D knew P couldrely on the misrepresentation);

(3) Actual and justifiable reliance by P(4) DamagesP must suffer monetary loss

B. Intentional Interference with Business Relations:

Arises when a third party interferes with an existing contract

1. Elements

(1) P has a valid contractual relationship or business expectancy;

(2) D has knowledge of the relationship or expectancy;

(3) D intentionally interferes with that relationship;

(4) Ds interference causes a breach or termination in Ps contract or

expectancy;(5) Damages

2. Privilege Defenses

(1) Ds conduct may be privileged when it is a proper attempt toobtain business or protect his interests

(i) E.g. lawfully competing for Ps customers


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VIII. Three Miscellaneous Topics ((i) Vicarious Liability; (ii) Co-Defendant Liability; (iii)

Loss of Consortium)

A. Vicarious Liability

o *** Impt. Test Note ***: Vicarious liability is always a doctrine of lastresort. So you should always ask yourself, first, Can this party be held liable

for his own conduct? Only if you cant hold him liable for his ownmisconduct should you consider the possibility of vicarious liability.

Vicarious liability flows from 1 of 4 relationships:

1. Employer-Employee Vicarious Liability (Respondeat Superior)

(1) General Rule: When the employee is the tortfeasor, the employerwill be vicariously liable for torts committed by the employee ifwithin the scope of their employment.

(i) If detour minor deviation from the scope ofemployment> probably WILL be liable

(ii) If frolic an unauthorized and substantial deviationwill NOT be liable

(2) General Rule re: Intentional Torts: Intentional torts are normallyoutside the scope of an employees employment, so the employeris not vicariously liable for the intentional tort UNLESS:

(i) 4 Exceptions Where Employer IS Liable for EmployeesIntentional Tort:

(1) The job includes an authorization to use force (e.g.a bouncer; security guard).

(2) The job involves creating friction / conflict (e.g. bailbondsman).

(3) The intentional tort was done to advance theemployers interests (e.g. physically breaking up afight in a store)

(3) Rule re: Independent Contractors: Hiring parties are generallynot vicariously liable for torts committed by their independentcontractors.

(i) Exception: A business owner will be vicariously liablewhen the independent contractor is an invitee (i.e. is on thebusinesss premises) and then hurts a customer.

2. PartnerPartner (in Partnership):


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(1) General Rule: Each partner is vicariously liable for any otherpartners torts committed within the scope of the partnershipsbusiness / affairs.

3. Automobile OwnerAutomobile Driver:

(1) General Rule: When the driver commits the tort, the automobileowner will generally not be vicariously liable for the drivers tort.

(i) Exception: The owner will be vicariously liable for thedrivers tort if the driver was doing an errand for theowner.

4. ParentChild:

(1) Rule: Parents will not be vicariously liable for the torts of theirchildren. NO EXCEPTIONS

(i) But Remember: Parents (or anyone else having care orcustody of a child) can be held liable for injuries caused by

the child where the parent herself was negligent. (e.g.parent may be liable for failing to exercise reasonable careto protect against their childs known dangerous ordestructive tendencies; the parent could then be liable forits own negligence not vicariously liable for childs tort).

B. Joint Defendants / Co-Defendant Liability

o Always assume that co-Ds are jointly and severally liable to P, meaning that Pcan recover the entire amount of damages from any 1 of the Ds.

1. Comparative Contribution:

(1) The out-of-pocket D (i.e. the D that ends up paying all thedamages) will be able to recover from the other Ds based on thepercentage of fault that the jury assigns all the Ds. (e.g. Pestablishes $100K in damages, with D1 (10% to blame), D2 (30%to blame), and D3 (60% to blame); P collects all $100K from D1.D1 can then get $30K from D2 and $60K from D3).

(i) Insurance Note: As a general rule, damages are notreduced by reason of benefits received by P from othersources, such as health insurance. So if P got $20K from

her insurance company for medical expenses, that will notreduce the amount of damages P can recover from D.

(2) 2 Exceptions [where out-of-pocket D gets all of his money backakaIndemnification]

(i) Vicarious Liability: If D has been held vicariously liable,D can get indemnification from the active tortfeasor.


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(ii) Strict Products Liability: In a strict products liabilitycase, a non-manufacturer (like a retail store) can getindemnification from the manufacturer. (e.g. P sues bothHome Depot and Black & Decker, recovers 100% fromHome Depot, and so Home Depot can get indemnification(for entire amount) from Black & Decker);

(1) Impt Note: It doesnt go the other way, i.e. themanufacturer cant get indemnification from theretailer.

C. Loss of Consortium

1. This remedy is granted to a married person whose spouse has been injuredin a tort. Its a derivative cause of action.

2. Impt Note: Any defense that can be asserted against the actual victimspouse (e.g. consent, comparative negligence, etc.) can be asserted asagainst the unharmed spouse bringing the derivative Loss of Consortium

cause of action.3. In the consortium remedy, you can recover for:

(1) Loss of household servicesno one to cook meals,

(2) Loss of societyemotional distress for loss of companionship

(3) Loss of sexual intimacy

D. Miscellaneous Rules

1. Imputing Anothers Negligence Onto Another:

(1) A parents negligence is not imputed to its child.

(2) One spouses negligence is ordinarily not imputed to the other.

2. Non-Liability vs. Liability for Servers of Alcoholic Drinks:

(1) At common law, a bartender / server of alcohol will not be liablefor the injuries sustained by the intoxicated person or injuries thatthe intoxicated person caused to a third person.

(i) Caveat: Some states have enacted dramshop acts thatcreate a cause of action in favor of any third person injuredby the intoxicated vendee. Without a dramshop act, thebartender will not be vicariously liable.

3. Directed Verdicts in Torts:

(1) To avoid a Ds motion for a directed verdict, a tort P must show:

(i) D had DUTY

(ii) BREACH


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And remember, Res Ipsa Loquitur allows P to avoid a directedverdict b/c Res Ipsa allows for an inference of negligence (byestablishing DUTY and BREACH).

Ds motion for a directed verdict will be denied most of thetime, but sometimes will be granted (~20%)

(2) Ps motion for a directed verdict:

(i) Will almost always be denied b/c there is almost always atriable issue of fact for the jury to determine.

(3) Most common answer is to deny both motions for a directedverdict.

4. Formula to Determine:

(1) E.g. Jury Determined that P suffered $100,000 in damages. P was60% at fault, car driver (insolvent) was 30% at fault, truck driver

was 10% at fault. In a pure comparative negligence jurisdictionretaining traditional joint liability rules, how much can P collectedfrom truck driver?

(i) First, $100,000 60,000 (from Ps fault) = $40,000 iswhat the car driver and truck driver are jointly andseverally liable for; so P can recover $40,000 from one orthe other (and then that D can try and seek contributionfrom the other)

Multistate Torts Outline

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