Torts

Law School Legends

Professor Richard Conviser
I.

Intentional Torts
A. General Points
1. Super-sensitive plaintiff Do not take the super-sensitivities into
account. Deal with plaintiffs as if they are average persons.
a. Exception Where the defendant in fact knows of the
sensitivities.
2. Everybody is liable for intentional torts!
3. Transferred Intent Doctrine Operates in two ways:
a. Intent can be transferred from person to person.
b. Intent can be transferred from tort to tort Must fall within the
old trespass list of five torts:
i. Battery
ii. Assault
iii. False Imprisonment
iv. Trespass to Land
v. Trespass to Chattels

Page 2

TORTS

LAW SCHOOL LEGENDS

B. Battery A harmful or offensive contact with plaintiffs person.

1. Offensive Contact Unpermitted contact.
2. With plaintiffs person We are talking about more than just touching
the body of the plaintiff. If you touch anything connected with
plaintiffs person, this is enough.
C. Assault
1. Apprehension Three ways to test on apprehension requirement
a. Must be reasonable.
b. Do not confuse apprehension with fear or intimidation.
c. Apparent ability is all that is necessary.
2. Immediacy
a. Words alone are not enough.
b. Words coupled with conduct.
c. Words can undo conduct and any reasonable apprehension.
D. False Imprisonment A sufficient act of restraint in a bounded area.
1. Sufficient Act of Restraint Common sense fact analysis.
a. Threats are enough. You do not need the actual application of
force.
b. An act of restraint can consist of inaction. In order for this to
happen, you have to find such that the defendant has an
obligation to act.
c. Plaintiff must know of the confinement at the time.
2. Bounded Area
a. An area is not bounded if there is a reasonable means of
escape.

Page 3

TORTS

LAW SCHOOL LEGENDS

b. The plaintiff has to know about the reasonable means of escape.

E. Intentional Infliction of Emotional Distress Outrageous conduct and
damages.
1. Outrageous Conduct It really has to be OUTRAGEOUS! The
conduct must be very extreme.
a. Look at the type of plaintiff you have Young children, elderly
persons, pregnant women, adults with supersensitivities that
defendant knows of.
b. Conduct is continuous.
2. Damages Must show substantial emotional distress.
F. Trespass to Land The defendant has invaded plaintiffs land.
1. Physical Invasion
a. Does not require that the defendant actually go onto the land.
b. Some physical object does have to go onto the plaintiffs land.
2. Plaintiffs Land
a. Includes more than the surface of the property. It includes the
space going up and down from the surface for a reasonable
distance.
G. Trespass to Chattels and Conversion
1. Which are you going to use?
a. If there is a lot of damage, it is conversion.
b. If there is only some damage, it is trespass to chattels.
3. Two types of damage:
a. Physical damage or destruction
b. Dispossession

Page 4

TORTS

LAW SCHOOL LEGENDS

II. Defenses to Intentional Torts

A. Consent
1. Plaintiff must have capacity.
2. Determine if there was consent
a. Express consent Words were used.
b. Implied consent
i. Apparent Implied Consent
a) Custom and usage
b) Plaintiffs conduct
ii. Implied by law
3. Determine if defendant has exceeded the boundaries of the consent
given.
B. Defense Privileges Self Defense, Defense of Others, Defense of Property
1. The timing requirement must be satisfied The tort against which you
are defending is now occurring or is just about to occur.
2. Make sure that the defense test is satisfied All you need is a
reasonable belief that a tort is being committed.
a. General Rule There is no duty to retreat before using self
defense.
b. Exception (strong modern trend) Before you use serious
force, you should retreat if you can do so safely and are not in
your own home.
3. You cannot exceed the boundaries You cannot use too much force.
a. Proper Force Rules
i. For self defense and defense of others you can use
reasonable force including deadly force.

Page 5

TORTS

LAW SCHOOL LEGENDS

ii. For defense of property you can use reasonable force,

but never force that will cause serious bodily injury.
C. Necessity
1. Can only be used where the tort is a property tort.
2. Determine if it is a public necessity case or a private necessity case.
a. Public necessity For the benefit of many and is an unlimited
privilege.
b. Private necessity For the benefit of a limited number of
people. The defendant will be liable for any damage caused.
III. Plaintiffs Dignitary Interests
A. Defamation Deals with injury to the plaintiffs reputation.
1. Prima Facie Case
a. Defamatory statement about this plaintiff
i. Defamatory Statement
a) Requires a defamatory assertion of fact.
b) If it is not clearly defamatory on its face and/or
does not clearly refer to the plaintiff on its face,
the plaintiff will have to bring in additional
evidence to make those points.
b. Publication
i. There must be a communication to a third person.
ii. The communication may be made either intentionally or
negligently.
iii. The third person must be capable of understanding the
defamatory content.

Page 6

TORTS

LAW SCHOOL LEGENDS

c. Injury to Plaintiffs Reputation

i. Injury is presumed for all writings.
ii. Injury is presumed for slander per se; otherwise, it is not.
In that case, the plaintiff must prove a money injury to
prove injury to reputation.
a) Slander per se categories
1) Any defamatory statement that goes to
the plaintiffs business or profession.
2) Any statement attributing criminal
activity to the plaintiff.
B. Defenses to Defamation
1. Consent
2. Truth It is a true statement.
3. Absolute and qualified privileges Where from a societal standpoint we
want people to speak out without worrying about defamation liability.
a. Absolute Privileges
i. Communications between spouses.
ii. The three governmental branches executive, legislative,
judicial
b. Qualified Privileges Can be lost if abused. If we would like to
encourage this type of communication, give defendant a
qualified privilege.
C. First Amendment
1. The First Amendment is at issue when the matter is of public interest.
2. If the First Amendment applies, we add two prima facie case
requirements and subtract one defense.
a. Extra prima facie case requirements

Page 7

TORTS

LAW SCHOOL LEGENDS

i. Falsity Plaintiff must prove that the statement was

false.
ii. Fault The plaintiff must prove that the defendant was
at fault.
a) Three types of fault
1) Negligent
2) Reckless
3) Intentional

b) Public Figure Plaintiff Must show intentional

or reckless tortious conduct in order to recover.
Negligence is not enough.
c) Private Person Plaintiff Can recover by showing
negligence.
b. Subtract defense of truth
D. Invasion of Right of Privacy
1. Appropriation by the Defendant of Plaintiffs Name or Picture for
Defendants Commercial Advantage.
a. Commercial Advantage Limited to the advertisement or
promotion of goods or services.
2. Intrusion by Defendant into Plaintiffs Privacy or Seclusion
a. Common sense fact analysis Would it be objectionable to the
reasonable person?
3. Publication of Facts Placing Plaintiff in a False Light
a. Where a statement has been widely disseminated that casts the
plaintiff in a negative, false light, but it does not quite amount
to defamation.
4. Publication of Private Facts about Plaintiff

TORTS

Page 8

LAW SCHOOL LEGENDS

a. Would an average reasonable person object to wide

dissemination of these facts? Are the facts sufficiently private?
E. Defenses to Invasion of Privacy
1. Consent
2. The Defamation Privileges Absolute and qualified privileges apply to
the publication branches.
IV. Negligence
A. Prima Facie Case
1. Duty
a. Foreseeable Plaintiff Duties of care are only owed to
foreseeable plaintiffs.
i. Unforeseeable Plaintiff Fact Pattern The defendant
will act negligently towards a clearly foreseeable plaintiff,
which ultimately injures someone else.
1) Andrews Approach Everybody is a foreseeable
plaintiff.
2) Cardozo Approach (Majority Rule) Whether or
not the person is within the foreseeable zone of
injury.
b. Standard of Care
i. The Reasonable Person Standard
1) Objective Test Standard
a) We invent a hypothetical reasonable
person.
b) We assign to this hypothetical person
traits and characteristics.

Page 9

TORTS

LAW SCHOOL LEGENDS

c) Measure what the defendant did against

what we would have expected our
hypothetical person would have done.
Do not look at the defendants own
personal traits and characteristics.
ii. The Children Standard
1) Children under four are deemed incapable of
negligence.
2) Look to see what would have been done by a
child of like age, intelligence, and experience.
a) Exception Where the child is engaged
in an adult activity, the reasonable person
standard applies.
iii. The Professionals Standard
1) A reasonable professional in the same or similar
community standard.
2) Specialists Take expertise into account.
iv. Common Carriers and Innkeepers
1) Held liable for even slight negligence to
passengers and guests.
v. Owner-Occupier Standards
1) Make sure the defendant is an owner or
occupier, or a person who is in privity with one.
a) Privity Examples family members,
employees
2) Did the injury occur on or off the land?
3) Assume injury is on the land.
a) Threshold inquiry Is plaintiff an
undiscovered trespasser?

Page 10

TORTS

LAW SCHOOL LEGENDS

i) If so, there is no duty owed to an

undiscovered trespasser. This
means that there is no standard of
care. They always lose.
b) If the plaintiff is any other kind of
plaintiff (discovered trespasser, licensee,
invitee), ask what caused the injury. Was
it an activity or a dangerous condition?
i) Activity Standard This is an
ordinary negligence case with a
reasonable person standard.
ii) Dangerous Condition Standard
Plaintiffs status is relevant. The
owner-occupier will owe different
kinds of plaintiffs a duty with
regard to different types of
dangerous conditions.
4) Types of Plaintiffs for Dangerous Condition
Standard
a) Discovered Trespasser Owner-occupier
is responsible for artificial conditions
involving a risk of serious injury that he
knows of.
b) Licensee Someone who is on the land
for his own purpose. Owner-occupier is
responsible for dangerous conditions that
he knows of.
c) Invitee Someone who is on the land for
the purposes of the owner-occupier.
Owner-occupier is responsible for
dangerous conditions that he should
know of. There is a duty to make a
reasonable inspection of the premises for
the benefit of invitees.

Page 11

TORTS

LAW SCHOOL LEGENDS

vi. Statutory Standard of Care

1) Two-part Test
a) Plaintiff must fall within the protected
class.
b) Statute must be designed to prevent this
kind of harm.
2) If the statute is inapplicable, apply another
standard.
3) If the statute does apply and has been violated,
this means that there is negligence per se. If an
applicable statute has been violated, there will be
a conclusive presumption of negligence on the
defendants part.
4) Exceptions
a) Where compliance would be more
dangerous, non-compliance is excused.
b) Impossibility.
c. Miscellaneous Duty Problems
i. Affirmative Duty to Act
1) General Rule There is no affirmative duty to
act.
2) Exceptions
a) Special relationship between parties
family members, employers and
employees, common carriers and
passengers
b) Where there is a duty to control the
conduct of third persons

Page 12

TORTS

LAW SCHOOL LEGENDS

i) Where you have the right and

ability to control the third person;
and
ii) You know of facts that should get
you to do that.
ii. Negligent Infliction of Emotional Distress
1) Plaintiff must suffer some physical injury.
2) Plaintiff must be within the target zone of
defendants negligent conduct.
2. Breach Negligent Conduct
a. Res Ipsa Loquitur The facts will make clear that the plaintiff
does not have enough solid, hard evidence to establish negligent
conduct on defendants part.
i. The Probability Test
1) This usually would not happen unless someone
was negligent.
2) It was probably this defendant that was negligent.
This is most often proven by showing the
defendant had exclusive control of the
instrumentality causing the injury.
3) The plaintiff must be free of contributory
negligence.
3. Causation
a. Actual Causation The true causation part of the analysis.
Look at the facts and ask yourself whether or not the
defendants negligent conduct actually cause the injury.
i. But For Test But for the defendants negligent
conduct, would this injury have occurred?
1) If the response is negative, the plaintiff is almost
always going to lose.

Page 13

TORTS

LAW SCHOOL LEGENDS

2) Sometimes, though, there is actual causation or

the strong probability of it. Therefore, use
another test.
ii. Substantial Factor Test Defendants conduct was a
substantial factor in causing injury.
iii. Alternative Causes Test There are two or more
negligent defendants, but there is uncertainty as to
which one caused the injury.
b. Proximate Causation A way for the jury to let a negligent
defendant who actually caused an injury off based on lack of
foreseeability.
i. Definitions
1) Direct Cause Case An uninterrupted chain of
events.
2) Indirect Cause Case Intervening act or event
that combines with the first negligent act to
cause the resulting injury.
ii. Proximate Causation Rules
1) If the result was unforeseeable, then let the
defendant go.
2) If the result was foreseeable, then hold the
defendant liable.
a) Exception If, in an indirect cause case,
the intervening act was an unforeseeable
intentional tort or crime, let the
defendant go even though the result was
foreseeable.
4. Damages
a. Take the plaintiffs property as you find it.

Page 14

TORTS

LAW SCHOOL LEGENDS

V. Defenses
A. Contributory Negligence In a contributory negligence state, plaintiffs
contributory negligence completely bars a recovery.
B. Comparative Negligence In a comparative negligence state, a plaintiffs
contributory negligence lowers the amount of recovery.
1. Partial Comparative Negligence State You will not achieve an award if
you are more negligent than the other party.
2. Pure Comparative Negligence State You can achieve a recovery even if
you were more negligent than the other party.
C. Assumption of Risk
1. Implied Assumption of the Risk
a. You knew of the risk.
b. You voluntarily proceeded in the face of it.
2. Last Clear Chance Doctrine Plaintiff is contributorily negligent. If
plaintiff is contributorily negligent, and the defendant still has the last
clear chance to avoid the accident and does not take it, the plaintiff will
be forgiven his earlier contributory negligence.
a. Last clear chance doctrine is only found in contributory
negligence state.
VI. Strict Liability
A. Definition Liability without fault on the defendants part.
B. Specific Types of Cases
1. Ultrahazardous Activities If you are engaged in an ultrahazardous
activity, you are strictly liable.
2. Animals Liability for domestic pets only after the first bite. If it is a
dangerous animal, there is strict liability.
C. Defenses

Page 15

TORTS

LAW SCHOOL LEGENDS

1. Contributory Negligence State

a. Knowing contributory negligence Complete defense.
b. Unknowing contributory negligence No defense in a strict
liability case.
2. Comparative Negligence State
a. Knowing and unknowing contributory negligence Offset the
award.
VII. Products Liability
A. Plaintiffs Anyone in the foreseeable zone of risk.
B. Defendants
1. Negligence
a. Retailers and wholesalers Almost never.
b. Manufacturers Almost always.
2. Strict Liability Hold them all liable.
VIII. Vicarious Liability
A. Respondeat Superior Employers are liable for torts of employees committed
within the scope of employment.