Uniform Bar Examination (UBE) 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 (minority): any plaintiff fault completely bars recovery. Pure comparative (default on essays): damages reduced by plaintiff's percentage of fault, recovery even if 99% at fault. Modified comparative: damages reduced by plaintiff's fault, but barred if plaintiff's fault exceeds 50% (or is 50% or more).

2. What is assumption of risk as a defense to negligence?

   The plaintiff is denied recovery if they (1) knew of the risk and (2) voluntarily proceeded in the face of it. Express assumption (e.g., waivers) bars recovery unless void on public-policy grounds. In comparative-fault jurisdictions, implied assumption of risk is often merged into the comparative-fault analysis.

3. What are the elements of negligent infliction of emotional distress (NIED) under the zone-of-danger theory?

   The plaintiff must (1) be within the 'zone of danger' of the defendant's negligence (threat of physical impact) and (2) suffer emotional distress, which most jurisdictions require to manifest in physical symptoms. (Modern courts sometimes relax the physical-symptom requirement.)

4. What are the requirements for a bystander NIED claim?

   A bystander outside the zone of danger may recover if: (1) the plaintiff and the victim are closely related; (2) the plaintiff was present at the scene; and (3) the plaintiff personally observed/perceived the event. Distress with physical manifestation is generally required.

5. Name situations allowing NIED recovery without any threat of physical impact.

   Special relationship/duty cases where distress is highly foreseeable: e.g., a medical lab erroneously reporting a loved one's death (false bad news), or mishandling of a relative's corpse. In these the physical-impact and zone-of-danger requirements do not apply.

6. What are the three categories of strict liability in tort?

   (1) Injuries caused by abnormally dangerous activities; (2) injuries caused by dangerous animals; and (3) products liability based on strict liability (defective products).

7. What are the factors for an 'abnormally dangerous activity' subject to 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/explosives, toxic chemicals, radioactive materials.

8. State the strict liability rules for harm caused by animals.

   Wild animals: owner is strictly liable for harm resulting from their dangerous propensities, regardless of precautions (no liability to undiscovered trespassers). Domestic animals: liability only if the owner knew or had reason to know of the animal's dangerous (vicious) propensities ('one free bite'), though strict-liability dog statutes vary.

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

   (1) The defendant is a commercial supplier (merchant) of the product; (2) the product was defective when it left the defendant's control; (3) the defect actually and proximately caused the injury; and (4) the plaintiff suffered damages. Privity is not required.

10. 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 dangerous, proven by a reasonable alternative design (risk-utility test); and (3) Warning defect (failure to warn)—inadequate warnings/instructions about non-obvious risks.

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

    A design is defective if the risks of the design outweigh its utility, and a reasonable alternative design (RAD) was available—safer, economically feasible, and practical—that the manufacturer failed to adopt. The plaintiff generally must show a feasible alternative design.

12. What theories besides strict liability can support a products liability claim?

    (1) Negligence (requires showing the supplier's lack of due care); (2) implied warranties of merchantability and fitness for a particular purpose; (3) express warranty and misrepresentation; and (4) intent. Strict liability and warranty don't require proving fault.

13. Distinguish private nuisance from public nuisance.

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

14. What makes an interference 'unreasonable' in a private nuisance claim?

    The interference is unreasonable when the severity of the harm to the plaintiff (judged by an objective, normal community standard, not the plaintiff's hypersensitivity) outweighs the utility of the defendant's conduct. The interference must also be substantial—offensive to an average person.

15. What are the elements of defamation?

    (1) A defamatory statement (one tending to harm the reputation of another); (2) of or concerning the plaintiff; (3) publication to a third party (intent or negligence as to publication); and (4) damage to the plaintiff's reputation. Where the plaintiff/matter is public, the plaintiff must also prove falsity and fault.

16. Distinguish libel from slander and their damages rules.

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

17. What constitutional fault standards apply when a defamation plaintiff is a public official/figure vs. a private figure?

    Public officials/figures (on matters of public concern) must prove 'actual malice'—knowledge of falsity or reckless disregard for the truth (New York Times v. Sullivan). Private figures (on matters of public concern) need prove only negligence as to truth; presumed/punitive damages require actual malice.

18. What are the four privacy torts?

    (1) Appropriation of plaintiff's name or likeness for commercial advantage; (2) Intrusion upon seclusion (highly offensive to a reasonable person); (3) Public disclosure of private facts (highly offensive, not of legitimate public concern); and (4) False light (publicizing facts placing plaintiff in a false light, highly offensive).

19. Compare the privacy torts of false light and public disclosure of private facts.

    False light: publicizing information/views attributed to the plaintiff that are FALSE and would be highly offensive to a reasonable person (truth is a defense). Public disclosure: publicizing TRUE private facts whose disclosure would be highly offensive and is not newsworthy (truth is NOT a defense; lack of public concern required).

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 the plaintiff's reliance; (4) actual and justifiable reliance by the plaintiff; and (5) damages (pecuniary). There is generally no liability for mere opinions or predictions.

21. What are the elements of tortious interference with contract/business relations?

    (1) A valid contract or business expectancy between plaintiff and a third party; (2) the defendant's knowledge of the relationship; (3) intentional interference by the defendant inducing breach/termination; and (4) damages. The defendant may raise privilege/justification (e.g., fair competition for prospective relationships).

22. When is an employer vicariously liable for an employee's torts, and what is the key limitation?

    Under respondeat superior, an employer is liable for torts committed by an employee within the scope of employment. Key limit: a 'frolic' (a major deviation for personal purposes) takes the employee outside the scope, while a minor 'detour' does not. Intentional torts are usually outside scope unless force is inherent to the job.

23. When is a hiring party liable for the torts of an independent contractor?

    Generally NOT liable, except: (1) inherently dangerous activities; (2) non-delegable duties (e.g., duty to keep premises safe for the public); and (3) negligent selection/hiring of the contractor. Apparent agency can also create liability (e.g., hospital and ER physicians).

24. Distinguish joint and several liability from several (proportionate) liability, and explain contribution vs. indemnity.

    Joint and several: each tortfeasor is liable for the entire judgment (plaintiff may collect all from one). Several liability: each pays only their proportionate share. Contribution: a paying tortfeasor recovers others' fair shares (by comparative fault). Indemnity: shifts the ENTIRE loss to another (e.g., retailer vs. manufacturer in strict products liability).

What this deck covers

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