MultiState Bar Examination (MBE) 4 – Sample

Use the substantial factor test, and ask whether the negligence of D was a substantial factor in P’s injury. Must use where either D alone would have brought about the harm. P can sue one or both collect all from either, but one D can seek contribution from the other party.�?�Consent defense to Intentional Torts

D’s conduct also violates a statute that doesn’t provide for civil liability (usually a criminal statute), the statute may establish the standard of conduct for breach of duty purposes. ? Negligence Per Se: Majority versus Minority

Arises where D honestly and reasonably believes that she used reasonable force to prevent P from engaging in an imminent and unprivileged attack. D only need be reasonable and must respond with proportionate force. Once the threat is over, the defense will not work. There must be an imminent existing threat and D responds accordingly. ? Slander per se

i.e. operating a car, boat or airplane. Required to conform to an adult standard of care. ? Children engaged in adult activities

D intentionally causes P to be confined or restrained to a bounded area against P’s will and P knows of the confinement or is injured thereby. ? False Arrest

In some situations, D has no obligation to act non-negligently towards P and there is no duty owed. i.e. getting tripped while playing basketball. ? Primary Assumption of the Risk

1. Reasonably prudent person under the same or similar circumstances; 2. Children; 3. Statutory negligence and neg per se; 4. Professionals ? Four Possible Standards of Care

D has to act with intent to cause severe mental distress, or be reckless in creating the risk of emotional distress. ? D’s state of mind for IIED

P is a member of the class intended to be protected by the statute, and the injury caused by D’s conduct is the type that the statute was intended to prevent.�?�Negligence Per Se Elements

No transferred intent doctrine, because D’s mental state is broader, and there are situations where 3P’s can recover by showing D was reckless as to whether his conduct would cause severe emotional distress. i.e. D stabs P’s father in front of P and knows that P is there.�?�Harm for Trespass to Chattels