Multistate Essay Examination (MEE) Torts Flashcards

24 sample cards from the Torts deck

Sampled from the end of the deck, so these are different cards from the ones shown on the syllabus page.

1. Compare contributory negligence, pure comparative negligence, and modified comparative negligence.

   Contributory negligence: any plaintiff fault completely bars recovery (minority). Pure comparative: recovery reduced by plaintiff's % of fault (any %). Modified comparative: recovery reduced by fault but barred if plaintiff's fault exceeds 50% (or reaches 50%).

2. What is assumption of the risk?

   A plaintiff who voluntarily and knowingly encounters a risk may be barred or reduced in recovery. Express assumption is by agreement; implied assumption requires actual knowledge of the specific risk and voluntary acceptance. In many comparative-fault states, implied assumption merges into comparative fault.

3. What is the 'last clear chance' doctrine?

   A plaintiff's rebuttal to contributory negligence: the defendant who had the last clear chance to avoid the accident but failed to do so is liable despite the plaintiff's contributory negligence. It exists only in contributory negligence jurisdictions.

4. What are the three categories of strict liability at common law?

   (1) Injuries caused by abnormally dangerous (ultrahazardous) activities, (2) injuries caused by wild/dangerous animals, and (3) products liability (strict liability branch). Liability exists regardless of the level of care exercised.

5. What factors define an 'abnormally dangerous activity' for strict liability?

   An activity is abnormally dangerous if it (1) creates a foreseeable risk of serious harm even when reasonable care is exercised, and (2) is not a matter of common usage in the community. Examples: blasting, storing toxic chemicals, transporting hazardous materials.

6. What is the strict liability rule for animals?

   Owners are strictly liable for harm caused by wild animals and for harm from known dangerous propensities of domestic animals (the 'one-bite' notion of prior knowledge). For trespassing livestock, owners are strictly liable for reasonably foreseeable property damage.

7. What are the three theories a plaintiff can use in a products liability case?

   (1) Negligence, (2) Strict products liability, and (3) Implied/express warranty (breach of warranty). (Misrepresentation/fraud is a fourth.) Each has different elements but the same underlying defects.

8. What are the elements of a strict products liability claim?

   (1) Defendant is a commercial supplier (merchant), (2) the product was defective when it left the defendant's control, (3) the defect caused the injury (actual and proximate cause), and (4) the plaintiff suffered damages. Privity is not required; plaintiff need not be the buyer.

9. What are the three types of product defects?

   (1) Manufacturing defect — the product departs from its intended design (consumer-expectation test). (2) Design defect — the entire line is unreasonably dangerous (risk-utility test asking if a reasonable alternative design existed). (3) Warning defect — inadequate instructions or failure to warn of non-obvious risks.

10. What is the risk-utility test for a design defect?

    A product is defectively designed if the risks of the chosen design outweigh its utility — typically shown by proving a reasonable alternative design was available that would have reduced the danger at acceptable cost without impairing the product's usefulness.

11. In strict products liability, who can be a defendant and who can be a plaintiff?

    Defendants: any commercial supplier in the distribution chain (manufacturer, wholesaler, retailer) — but not casual sellers or service providers. Plaintiffs: any foreseeable user, consumer, or bystander injured by the defective product (no privity required).

12. What defenses apply in a strict products liability case?

    Comparative/contributory fault (in comparative states, reduces recovery), assumption of risk, and product misuse that was not reasonably foreseeable. Note: ordinary contributory negligence (mere failure to discover the defect) traditionally is not a defense; the state-of-the-art and government-standards compliance are relevant but not conclusive.

13. How does breach of the implied warranty of merchantability work in products cases?

    Every merchant seller of goods of that kind impliedly warrants the goods are fit for ordinary purposes. A defect breaching this warranty creates liability regardless of fault; defenses include disclaimers (if conspicuous), assumption of risk, and failure to give timely notice of breach.

14. What are the elements of common-law defamation?

    (1) A defamatory statement of or concerning the plaintiff, (2) publication to a third party, (3) falsity, and (4) damage to reputation. For public concern/public figures, the plaintiff must also prove fault (negligence or actual malice) — a constitutional requirement.

15. Distinguish libel from slander, and what is 'slander per se'?

    Libel is written/recorded/permanent defamation — damages are presumed. Slander is spoken — the plaintiff must prove special (economic) damages, unless it is slander per se. Slander per se categories: statements about (1) business/profession, (2) a loathsome disease, (3) serious crime, or (4) unchastity/sexual misconduct.

16. What is the constitutional 'actual malice' standard, and when does it apply?

    Actual malice (New York Times v. Sullivan) means the statement was made with knowledge of its falsity or with reckless disregard for the truth. Public officials and public figures must prove actual malice; private figures suing on matters of public concern need prove only negligence (and actual malice for presumed/punitive damages).

17. What are the defenses/privileges to defamation?

    Truth (complete defense), consent, and privileges. Absolute privileges: statements in judicial/legislative proceedings, between spouses, and required broadcasts. Qualified privilege: statements in the public interest or to one with a common interest, lost if abused (exceeds scope or made with malice).

18. What are the four privacy torts?

    (1) Appropriation of the plaintiff's name or likeness for commercial advantage, (2) Intrusion upon seclusion (highly offensive to a reasonable person), (3) Placing the plaintiff in a false light before the public, and (4) Public disclosure of private facts.

19. Compare 'false light' privacy with defamation.

    False light requires publicizing facts that place the plaintiff in a false light highly offensive to a reasonable person, and requires wide publicity (not just publication to one person). It can be based on true facts arranged misleadingly and protects emotional/dignitary harm, whereas defamation protects reputation and requires a false statement of fact.

20. What are the elements of intentional misrepresentation (fraud/deceit)?

    (1) A false representation of a material fact, (2) scienter (knowledge of falsity or reckless disregard), (3) intent to induce reliance, (4) justifiable/actual reliance by the plaintiff, and (5) damages. Pure economic loss is recoverable here.

21. Distinguish tortious interference with contract from interference with prospective economic advantage.

    Interference with contract elements: (1) a valid contract, (2) defendant's knowledge of it, (3) intentional interference inducing breach, and (4) damages. Interference with prospective advantage involves a probable future economic relationship (not yet a contract) and gives defendants broader privilege to compete; both require intentional, improper interference.

22. Distinguish private nuisance from public nuisance.

    Private nuisance is a substantial and unreasonable interference with another's use and enjoyment of their land (plaintiff must have a property interest). Public nuisance is an unreasonable interference with a right common to the public; a private plaintiff can sue only if they suffered harm different in kind from the general public.

23. What is required to hold an employer vicariously liable under respondeat superior?

    An employer is liable for an employee's torts committed within the scope of employment. Minor deviations ('detours') remain within scope; major deviations ('frolics') do not. Intentional torts are usually outside scope unless force is inherent in the job or the conduct serves the employer.

24. When is a principal liable for the torts of an independent contractor?

    Generally not liable — a key distinction from employees. Exceptions: (1) inherently dangerous activities, (2) non-delegable duties (e.g., duty of a storekeeper to keep premises safe for customers), and (3) negligent selection of the contractor (a direct, not vicarious, theory).

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