TORTS SHORT OUTLINE & CHECKLIST

CHECKLIST
I. Intentional Torts (7) In fact pattern, to pull issues, look at:
a. BATTERY  Plaintiff’s Harm
b. ASSAULT o Personal?
c. FALSE IMPRISONMENT o Personal or Real Property?
d. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS* o Reputation/Privacy?
e. TRESPASS TO LAND  Defendant’s Conduct
f. TRESPASS TO CHATTELS o Intentional?
g. CONVERSION o Negligent?
o Abnormally Dangerous?
II. Defenses to Intentional Torts (3) o Product Related?
a. CONSENT
b. PROTECTIVE PRIVILEGES (SELF-DEFENSE, DEFENSE OF OTHERS, DEFENSE OF PROPERTY)
c. NECESSITY

III. Defamation
a. COMMON LAW ELEMENTS (4)
b. CONSTITUTIONAL ELEMENTS IF PUBLIC CONCERN (2)
c. DEFENSES (3)

IV. Privacy Torts (4)

a. APPROPRIATION
b. INTRUSION UPON SECLUSION
c. FALSE LIGHT
d. DISCLOSURE

V. Negligence
a. DUTY ((1) Foreseeable? (2) Standard of Care? Default + Special)
b. BREACH
c. CAUSATION (Actual & Proximate)
d. DAMAGES
e. DEFENSES (3)

VI. Strict Liability

a. WILD ANIMALS
b. ABNORMALLY DANGEROUS ACTIVITIES

VII. Products Liability

VIII. Other Miscellaneous Torts
a. NUISANCE (Not a Tort, but a Harm)
b. ECONOMIC TORTS (Fraud, Negligent Misrep, Interference with Business Relations)
c. LITIGATION TORTS (Malicious Prosecution, Abuse of Process)

IX. General Considerations

a. VICARIOUS LIABILITY
b. JOINT TORTFEASOR RESPONSIBILITIES (Joint/Several Liability, Contribution, Indemnification)
c. LOSS OF CONSORTIUM

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I. INTENTIONAL TORTS
a. BATTERY
i. (1) Δ commits a harmful or offensive contact
1. (judged by reasonable person standard, can be direct or indirect)
2. (contact is offensive if would not be permitted by a reasonable person of ordinary
sensitivity)
ii. (2) to the Π's person
1. (including anything connected to the PL),
iii. (3) intent, and (attempt from assault will transfer into a battery)
iv. (4) causation

b. ASSAULT
i. (1) Act by Δ putting Π in reasonable apprehension
1. (knowledge, not fear)
2. (apparent ability is enough)
ii. (2) of an immediate harmful or offensive contact (battery) to Π
1. (words not enough – must be coupled with conduct)
2. (words may negate apprehension)
3. (future threats do not count)
iii. (3) intent
iv. (4) causation

c. FALSE IMPRISONMENT
i. (1) An act or omission by the Δ that confines or restrains Π
1. (threats are sufficient, but not future threats or moral pressure)
2. (omission/failure by Δ to act if under pre-existing duty to act in a certain way is
sufficient)
3. (Π must be aware of confinement or be harmed by it)
4. (time of confinement is irrelevant)
ii. (2) Plaintiff must be confined in a bounded area
1. (must be no reasonable means of escape that Π can reasonably discover)
iii. (3) intent
iv. (4) causation
v. **Shopkeeper’s Privilege – shopkeeper may detain for a reasonable period of time individuals
who they reasonably believe to be in possession of shoplifted goods**
vi. Damages - Π can recover all foreseeable damages resulting from the tort, including humiliation

d. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

i. (1) Act by Δ amounting to extreme/outrageous conduct
1. Extreme/Outrageous Conduct = conduct that exceeds all bounds of decency tolerated
in a civilized society
2. (negative – mere insults are not enough, exercises of constitutional rights are not
actionable)
3. (positive – continuous/repetitive conduct, conduct by certain type of Δ (common
carrier, innkeeper), Π is member of certain fragile class of persons (young children,
elderly, pregnant women, targeting a person’s known sensitivity))
ii. (2) which causes the Π to suffer severe emotional distress (damages)
1. (need not show particular evidence, physical injury NOT required)
iii. (3) intent OR RECKLESSNESS*
iv. (4) causation

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v. Bystander – Δ harms 3rd person, Π suffers severe emotional distress – only actionable if (1)
shows prima facie evidence herself, or (2) is she was present and a close relative of Π and Δ
knew of these.

e. TRESPASS TO LAND
i. (1) an act of physical invasion
1. (By Δ himself, or Δ causing some other tangible object to do so [throw a rock over prop])
2. (Δ doesn't have to know he cross a boundary or intend to be on another's property, just
on to be property through a volitional act)
ii. (2) that interferes with Π's exclusive possession of land
1. (Includes airspace above and soil below for reasonable distance)
iii. (3) intent
iv. (4) causation

f. TRESPASS TO CHATTELS
i. (1) Act by Δ that interferes with Π's right of possession in a chattel
1. (Interference can be either intermeddling (damaging chattel), or dispossession
(depriving Π of possession))
2. (Slight interference (whereas conversion is severe))
ii. (2) intent
iii. (3) causation
iv. (4) damages
1. (Either to chattel or possessory right, measure of damages is cost of repair)

g. CONVERSION
i. (1) Act by Δ that interferes with Π’s right of possession in a chattel
1. (Interference can be either intermeddling (damaging chattel), or dispossession
(depriving PL of possession))
ii. (2) interference is so serious that it warrants the Δ to pay chattel’s full value
1. (Look at length of interference and extent of damage)
2. (Measure of damages is FMV at time of conversion or replevin)
iii. (3) intent
iv. (4) causation

II. DEFENSES TO INTENTIONAL TORTS

a. CONSENT
i. (1) For VALID CONSENT, Π must have legal capacity
1. Children can give consent to age appropriate invasions (which broadens as children get
older)
2. Types of Consent:
a. Express Consent: spoken or written consent by Π for Δ to behave in the
challenged fashion. Exceptions if consent obtained through:
i. fraud (as to essential matter, not collateral matter) or
ii. duress (unless future threats), or
iii. mistake (if DF knew of and took advantage of mistake).
b. Implied Consent:
i. Consent implied from custom/usage (sports)
ii. Consent implied based on Δ's reasonable interpretation of Π’s objective consent (body
language consent – “making a move”)

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iii. Consent implied by law when necessary to save life or other important interests in
person or property
ii. (2) Did Δ stay within the boundaries (SCOPE) of the consent given?

b. PROTECTIVE PRIVILEGES (SELF-DEFENSE, DEFENSE OF OTHERS, DEFENSE OF PROPERTY)

i. (1) Proper Timing
1. Δ must act while threat is in progress, or when threat is imminent.
2. No defense if tort has already been committed (unless hot pursuit or unless tort could
happen again – slap in the cheek)

ii. (2) Genuine Threat

1. Δ must have a reasonable belief that the threat was genuine, but a reasonable mistake
does not defeat the privilege

iii. (3) Degree of Force

1. May only use the amount of force necessary to respond to the threat – an equal amount
of force. Excessive force defeats the privilege.
2. Deadly force may be used to respond to threat of death or serious bodily harm.
3. NO deadly force to defend PROPERTY, unless there is a threat of serious bodily
harm/death coupled with defending property. Typically must first ask to desist from
damaging property b4 using force, unless futile.

c. NECESSITY
i. Only a defense to PROPERTY TORTS.

ii. (1) Public Necessity

1. Δ invades Π’s property when necessary to avoid threatened injury from natural or other
force of the community as a whole or a significant group of people.
2. Threatened injury more serious than invasion
3. ABSOLUTE defense – no liability whatsoever

iii. (2) Private Necessity

1. Δ interferes with Π's property to protect his own interests or to benefit a limited
number of people
2. This is a QUALIFIED privilege with 3 consequences:
a. Liable to owner of the property for any actual harm to property or people
(compensatory damages)
b. Not liable for nominal or punitive damages.
c. As long as the emergency continues, Δ has right to be on Π’s land in a position of
safety. Right of refuge/sanctuary.

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III. DEFAMATION
a. To prove the prima facie case of defamation, a Π must prove (1) Δ made a defamatory statement, (2) of
or concerning plaintiff, (3) publication, and (4) damages. If the defamation involves a matter of public
concern, the Constitution requires Π to prove two additional elements: (1) falsity, and (2) fault.

b. (1) Δ must make a Defamatory Statement

i. Defamatory Statement = One that tends to adversely affect a Π's reputation
ii. Mere insults are NOT enough)
iii. Generally must be a statement of fact to be actionable
1. Opinions are actionable if rsbl person would conclude it is based on specific facts
iv. Inducement – pleading additional facts when not defamatory on its face, to establish meaning
by innuendo

c. (2) Of or Concerning the Π

i. (Does not have to refer by name, title is sufficient as long as reasonable person understands that
statement is about Π (colloquium –additional facts pled if statement does not refer to Π on its
face))
ii. (Π must be alive at time statement is made)
iii. Group defamation:
1. Small Group – if statement refers to all members of small group, each/all members can
establish this element
2. Large Group – if statement refers to large group, no member can satisfy this element

d. (3) Publication by Δ to a third person

i. (Intentionally OR negligently communicating statement to person other than PL)

e. (4) Damages to Π Reputation – different categories:

i. Libel: defamation that is written or captured in permanent form (radio/tv)
1. Damages are PRESUMED – no need to prove special damages
ii. Slander: spoken/oral defamation
1. Π is required to prove special damages (economic harm), unless the defamation falls
within one of the 4 slander per se categories, in which case damages are presumed:
Think In da CLUB
1) Crime of moral turpitude (C)
2) Plaintiff suffers from loathsome disease (either Leprosy or Venereal Disease)(L)
3) Imputing un-chastity to a woman (non-virgin) (U)
4) Business or Profession (B)

f. IF MATTER OF PUBLIC CONCERN, MUST PROVE 2 ADDITIONAL ELEMENTS:

i. (1) Falsity – Burden shifts to the Π who must prove that statement is false; and
1. truth no longer a valid defense for Δ if Π can prove this
ii. (2) Fault – Π must prove that Δ is at fault, which differs if public figure or a private figure
1. Π is Public Figure: Π must prove malice – (1) knowledge that statement was false, or (2)
reckless disregard of whether stmt was false.
a. Subjective test – “ill will” or “hatred” not enough
2. Π is a Private Person: Π must prove that Δ acted negligently (did not act reasonably to
investigate).

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Defamation: a) defaming statement 2) of/concerning plaintiff c) published to a 3rd party d) pick a person/matter below
(bar will likely make it clear which category-- they could do a hybrid type in which case talk about the ones that apply):
Statement about private Private person statement matter of Public figure/official **usually
person/private matter public concern testing this
Libel: damages presumed 1.plaintiff must prove stmnt is false 1.ID why public figure
Slander per se: damages presumed 2.plaintiff can prove actual malice or 2.apply NY times to prevail:
Slander: prove up actual injury for plaintiff can show def was negligent in Plaintiff must prove:
damages making stmnt and that plaintiff was 1.stmnt is false
actually injured 2. def acted w/ actual
malice/knowledge of falsity or
reckless disregard for the truth
*damages presumed

g. DEFENSES (to defamation)

i. (1) Consent – same as above
ii. (2) Truth – Δ has burden to prove statement was in fact true
iii. (3) Privilege:
1. Absolute Privilege: stmts b/w spouses, stmts made in government proceedings (judicial,
legislative, executive), and in “compelled” broadcasts
a. Showing of malice, abuse, or excessive provocation does NOT remove privilege
2. Qualified Privilege: reports of official proceedings, public interest, or when publisher,
recipient, or both have a legitimate interest in the stmt's info (ex: references,
recommendations, stmts to police, etc)
a. Can lose this privilege if (1) statement not within scope of privilege (must
confine to relevant matters), or (2) speaker acts with malice (no good faith
reasonable belief that stmt is true).

IV. PRIVACY TORTS (4)- (invasion of privacy)—always raise all 4 on essay

a. (1) APPROPRIATION
i. Defendant, without authorization, uses the Π's name or picture for a commercial advantage.
1. Newsworthy Exception - While it's a tort to put someone's picture on a
package/billboard, it's not a tort to run someone's picture in newspaper/magazine
2. Must be a publication
b. (2) INTRUSION UPON SECLUSION
i. Invasion of Π's physical seclusion (prying or intruding) in a way that would be highly offensive
to the average person.
1. Π must have reasonable expectation of privacy.
2. (No publication rqmt)
c. (3) FALSE LIGHT
i. Widespread dissemination of a material falsehood about the Π that would be highly offensive
to a reasonable person.
1. Must be a publication.
2. May overlap w/ defamation
3. Rsbl belief in truth of the statement is NOT a defense…speak at your own risk
d. (4) DISCLOSURE
i. Public disclosure of private confidential information about the Π that would be highly offensive
to a reasonable person.
1. Must be a publication. (same as publication definition from defamation)
2. Information must be TRULY PRIVATE
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a. Dual life fact pattern - no tort from someone carrying info from one social
sphere of a person to another and disseminating that info
1. Newsworthy Exception—of and concerning public matter and public has the
right to the information, so long as the news company has nothing to do with getting the info,
2. right to publish/freedom of press under 1st amend
e. DEFENSES:
i. Consent – see above – to all 4 privacy torts
ii. Absolute/Qualified Privileges – only false light and disclosure
1. Absolute Privilege: stmts b/w spouses, stmts made in government proceedings (judicial,
legislative, executive), and in “compelled” broadcasts
a. Showing of malice, abuse, or excessive provocation does NOT remove privilege
2. Qualified Privilege: reports of official proceedings, public interest, or when
publisher/recipient/or both have a legitimate interest in the stmt's info (ex: references,
recommendations, stmts to police, etc)
a. Can lose qualified privilege if (1) statement not within scope of privilege (must
confine to relevant matters), or (2) speaker acts with malice (no good faith
reasonable belief that stmt is true).
f. DAMAGES
i. For all privacy torts, Π can also recover for emotional harm
V. NEGLIGENCE
a. To prove the prima facie case of negligence, a Π must prove the following elements: (1) Duty, (2) Breach,
(3) Causation (both actual and proximate cause), and (4) damages.
b. (1) DUTY
i. (1) To whom is duty owed? A duty of care is owed to foreseeable plaintiffs. No duty is owed to
unforeseeable plaintiffs. Cardozo view = foreseeable zone of danger. Andrews view = everyone
is foreseeable.
1. Exception: rescuers are within zone of danger even if far away when Π injured, where Δ
negligently put himself or another in peril (danger invites rescue)

ii. (2) What is the STANDARD OF CARE?

1. Basic Standard: The basic standard of care is that of a reasonably prudent person,
acting under similar circumstances (even in emergencies) (OBJECTIVE standard).
a. Δ's mental deficiencies and inexperience are NOT taken into account (stupidity
not an excuse)
b. Exceptions:
i. (1) Superior Knowledge of the Particular Case – then that person is held to that
superior knowledge
ii. (2) Physical characteristics – Δ is blind, standard is reasonably prudent blind person,
etc.
c. Firefighters/police officers can never recover for an injury that is an inherent
risk of their occupation.

2. Specific Standards (8 OF THEM):

a. (1) Children
i. Children under age 5 cannot be negligent
ii. Standard: Child owes care of a similar age, education, intelligence and experience
acting under similar circumstances (SUBJECTIVE standard)
1. Exception: If child engaged in adult activity (operating
motorized vehicle)– default ordinary prudent person standard

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b. (2) Professionals
i. Standard: Professionals have a duty to exercise the skill and knowledge normally
possessed by members of that profession in good standing (EMPIRICAL standard, so
need an expert witness).
1. Drs Duty to Disclose Risk of Treatment to patients
2. Medical Specialists – national standard of care

c. (3) Common Carriers & Innkeepers

i. High degree of care – duty to inspect and make safe
1. Liable for slight negligence

d. (4) Bailment Duties (loaning car)

i. Duties owed by Bailee (borrower/possessor)
1. Sole benefit of Bailor/loaner - low standard of care
2. Sole benefit of Bailee/borrower - high standard of care
3. Mutual benefit - ordinary standard of care
ii. Duties owed by Bailor (loaner)
1. Sole benefit of Bailee - inform of known dangerous defects
2. Bailment for hire - Inform of defects he is or should be aware

e. (5) Owners/Occupiers of Land (Premises Liability – Injury by Static Condition on

Property) – Four Main Types:

i. (1) Undiscovered Trespasser

1. Standard: No duty whatsoever to protect against dangerous
condition to an undiscovered trespasser – they are not
foreseeable

ii. (2) Discovered/Anticipated Trespasser

1. Standard: Possessor must protect a trespasser from (1) an
artificial condition, (2) that is highly dangerous – which risks
death or serious bodily harm, (3) that is concealed from the
trespasser, and (4) and which is known by the possessor.
a. (warn of known, dangerous, artificial conditions)

2. ATTRACTIVE NUISANCE DOCTRINE:

a. Landowner must avoid reasonably foreseeable risk of
harm to trespassing children caused by an artificial
condition. Must show:
i. (1) known dangerous condition
ii. (2) should know children frequent vicinity
iii. (3) condition likely to cause injury as child is
unable to appreciate the risk
iv. (4) expense of remedy is slight compared to
risk
iii. (3) Licensees
1. A licensee is a person who comes to the land with permission
but does NOT confer an economic benefit to the possessor
(social guest).

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2. Standard: The possessor owes a duty to protect a licensee from

(1) a concealed condition (natural or artificial) not likely to be
discovered, (2) that the possessor knows about in advance.
a. (warn of known dangerous conditions)
iv. (4) Invitees
1. An invitee is a person who comes to the land with permission in
order to confer an economic benefit to the possessor OR
entering property open to the public at large.
2. Standard: The possessor owes a duty to protect an invitee from
(1) a concealed condition (natural or artificial), (2) that the
possessor knows about in advance, or could have discovered
through a reasonable inspection. (DUTY TO INSPECT)
a. **If invitee exceeds scope of invite – deemed
anticipated trespasser or licensee at best
b. (duty to protect and inspect)
v. (5) Those off the land - Duty for unrbly dangerous artificial conditions
vi. (6) Firefighters/police officers can never recover for an injury that is an inherent risk of
their occupation
NOTE - All duties may be satisfied by either (1) fixing the problem OR (2)
give a warning (put up a sign)

f. (6) Statutory Standards of Care (Negligence Per Se)

i. A statute may exist that allows a Π to establish conclusively that Δ had a duty and that
duty was breached, as long as Π meets the four part test:
1. (1) statute provides for a criminal penalty
2. (2) statute clearly defines the standard of conduct
3. **(3) Π is within the protected class that statute was designed
to protect
4. **(4) statute was designed to prevent the type of harm
suffered by Π
ii. Exceptions that make statute n/a:
1. If compliance with statute is more dangerous than a violation
2. If compliance is impossible

g. (7) Duties to Act Affirmatively

i. General Rule: There are no duties to act affirmatively, no duty to rescue.
ii. Exceptions:
1. (1) Choosing to undertake an act of aiding someone, must do
so with reasonable care
2. (2) Pre-existing relationship (parent-child, common carriers,
innkeepers, etc.)
3. (3) Defendant was the cause of the peril

h. (8) Negligent Infliction of Emotional Distress

i. Δ has a duty to avoid negligent infliction of emotional distress which is breached if Δ
creates a foreseeable risk of harm to Π.
ii. Three routes to recovery
1. Near miss fact pattern
a. (1) Π must be in the zone of danger

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b. (2) Π must suffer subsequent physical manifestation of

symptoms (actual damages)
c. Exceptions where actual damages need not be shown
i. Mishandling of a corpse
ii. False report of a death
2. Bystander Recovery (Injury to 3rd Person, Not Π)
a. (1) Π and 3rd person are closely related
b. (2) Π is present at scene of injury
c. (3) Π personally observed the event
i. Observation can be by sight, hearing, or other
senses
ii. **Π MUST SUFFER PHYSICAL INJURY STILL
3. Special Relationship
a. Nature of relationship is one where carelessness is
highly likely to lead to emotional distress

c. (2) BREACH
i. Δ breached his duty of care when (FACT). This is unreasonable because reasonable people
under similar circumstances (REASON)…
ii. Res Ipsa Loquitur:
1. This doctrine applies when a Π cannot identify how the Δ breached his duty. Π can
establish breach under this doctrine by showing:
a. (1) That the accident that occurred would not normally occur unless someone
was negligent
b. (2) The accident or injury is NORMALLY due to the negligence of someone in
the defendant’s position. Usually shown where instrumentality causing injury
was in DF’s control.

d. (3) CAUSATION (Actual Cause and Proximate Cause)

i. (1) Actual Causation – Δ's breach of his duty must be the actual cause of Π’s injury.
1. Default Test (single Δ): “But-For” Test: But for Δ’s breach, the Π would not have
suffered any injury.
2. Special Scenarios with Multiple Δs:
a. Joint Causes – Substantial Factor Test:
i. Where two Δs commit a breach, each of which could have caused the injury by itself if
it had been the only breach, Δ’s breach is the substantial factor in causing Π’s injury.
b. Alternative/Unascertainable Causes – Burden Shift:
i. Where there are two breaches, one of which causes the injury but it is unknown which
breach caused the injury, then the burden of proof switches to the Δs to prove that the
injury was not caused by his breach.
ii. (2) Proximate Causation – Δ’s breach must also be the proximate cause of Π’s injury. It is a
limitation of liability to determine whether liability is fair, measured by foreseeability. (only
discuss foreseeability on an essay)
1. Direct Cause Cases
a. Where there is an uninterrupted chain of events from Δ’s negligence to Π’s
injury, Δ is liable for all foreseeable harmful results, and is NOT liable for
unforeseeable harmful results.
2. Indirect Cause Cases
a. If an affirmative intervening force (act of 3rd person or God) comes into motion
after Δ’s negligent act and combines with it to cause Π’s injury, then the Δ is

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generally liable for foreseeable results that are caused by either foreseeable
(dependent) intervening forces and usually by an unforeseeable intervening
force (unless the result of a crime or tort of third person). Common intervening
forces where Δ will be found liable:
i. (1) Intervening Medical Negligence
ii. (2) Intervening Negligent Rescue
iii. (3) Intervening Reaction or Protection Forces
iv. (4) A Subsequent Accident or Disease
b. Δ is not liable for unforeseeable results caused by intervening forces.
Unforeseeable intervening forces are superseding.

e. (4) DAMAGES
i. “Eggshell Skull” Principal:
1. If injury is foreseeable, the Δ is liable for full extent of injury even if the full extent of the
injury was not foreseeable. A Δ takes his Π as he finds him.

f. DEFENSES:
i. (1) Contributory Negligence (MINORITY) – Negligence (lack of reasonable care) by Π that
contributes to Π's injury. Π recovers nothing, unless Δ had the last clear chance to avoid the
accident. NO DEFENSE TO WANTON/WILLFUL CONDUCT.

ii. (2) Assumption of Risk – Π denied recovery if (1) knew of risk, and (2) voluntarily proceeded in
the face of the risk.

iii. (3) Comparative Negligence (MODERN DEFENSE)

1. Pure Comparative Negligence (default for MBEs)
a. Π may recover no matter how much fault is attributable to Π. Π recovers in
proportion to her own fault.
2. Modified/Partial Comparative Negligence
a. Π may recover up to 50% at fault. If Π is at fault over 50%, then Π is barred from
recovery.
3. **STILL A VALID DEFENSE EVEN IF Δ ACTED WANTONLY/WILLFULLY

VI. STRICT LIABILITY (2)

a. (1) Animals
i. Trespassing Animals – owner is strictly liable for foreseeable damages by trespassing animals.
ii. Wild Animals – strictly liable for injuries caused by a wild animal
1. Must suffer an injury associable w/ animal's dangerous propensities (fleeing qualifies)
iii. Domestic Animals – not strictly liable for injuries caused by domestic animals unless the owner
has knowledge of the animal’s vicious propensities. No liability to a trespasser unless the
owner was negligent.
b. (2) Abnormally Dangerous Activities
i. An actor is liable for injuries caused by his abnormally dangerous activities as long as:
1. (1) the activity creates a foreseeable risk of serious harm, even when reasonable care is
exercised, and
2. (2) the activity is not common in the community

VII. PRODUCTS LIABILITY

a. Π may bring a products liability suit against a Δ under five theories: (1) strict products liability; (2)
negligence, (3) implied warranties, (4) express warranties/misrepresentation, or (5) intent.
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1. Strict products liability: commercial seller who places a defective product into the stream of commerce is
liable.
i. Defect in design-
a. Consumer expectation test-expectation and product failed to conform to that expectation and
was unreasonably dangerous as a result
b. Risk-utility/feasible alternative design test=product could be made safer without substantially
increasing price or decreasing utility; look for some feasible alternative design
ii. Defect in warning=look to see that manufacturer provided instructions for safe use and warned for
any hidden or non-obvious dangers (design and warning go hand in hand)
iii. Defect in manufacturing=mistake that got off the product line; doesn’t conform to the
manufacturers specifications and is unreasonably dangerous
iv. Defect has to Cause the injury
2. Negligence=knew or should have known about the defect, briefly talk about negligence elements (this will
be quick)
1. Duty—foreseeable plaintiff
2. breach-negligent conduct of the defendant leading to the supply of the defective product
3. causation—actual (but for) and proximate (foreseeable)
4. damages-
5. defense to negligence-contributory, comparative, and assumption of risk
3. Warranty under ucc (need to prove the 4 elements for each below; a) is the standard for each warranty, b-d
is the same definition as negligence standards)
i. Implied warrant merchantability=a)goods of average acceptable quality and fit for ordinary use b)
breach c) causation d) damages
ii. Fitness for particular purpose=a)seller has reason to know the purpose of the goods sold and buyer
relies on this assurance b)breach c) causation d) damages
iii. Express warranty=a)promise concerning the goods that becomes part of the basis of the bargain --
anything said by manufacturer or sales person is express warrant; look for affirmation b)breach c)
causation d) damages
4. Misrepresentation=seller liable for misrepresentations of facts concerning the product where:
1) the statement was a material fact concerning quality or uses of the good and the seller intended to
induce reliance by the buyer
2) causation-actual (shown by buyer’s reliance) proximate (same as negligence)
3) damages (same as negligence)
5. Intent=desired to hurt people or knew to substantial certainty that a harmful/offensive contact will result

Not likely to get products liability question on anything other than STRICT PRODUCTS LIABILITY:
b. Strict Products Liability –Where a commercial supplier places a product into the steam of commerce
and it is defective they are strictly liable for the injuries caused by the defect.
Must Meet 5 Elements
i. (1) Defendant must be a COMMERCIAL SUPPLIER
1. Applies to commercial lessors of goods, and all parties in chain of distribution.
2. Does NOT apply to casual sellers or service providers.
ii. (2) Stream of commerce=placed into the marketplace where consumers can purchase

iii. (3) Δ must have Produced or Sold a defective product (most important on essay)
1. Manufacturing defect – When product emerges from assembly line different and more
dangerous than the other products made properly. Shown where product failed to
perform as safely as ordinary consumer would expect.

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2. Design defect – product has design defect if there is another way the product could
have been built, that meets the 3-part test – an alternative design:
a. (1) Design is safer than the marketed version
b. (2) Design is economic or cost effective
c. (3) Practical alternative – doesn’t defeat purpose of product (utility)
a. Consumer expectation test-expectation and product failed to conform to that expectation and
was unreasonably dangerous as a result
b. Risk-utility/feasible alternative design test=product could be made safer without substantially
increasing price or decreasing utility; look for some feasible alternative design

3. Inadequate Warnings – has defect if a product cannot be made physically safer and it
still has residual risks not obvious to consumers, and does not have adequate warnings.
a. Presumption, if you failed to warn, that an adequate warning would have
prevented the injury - can be used to establish actual cause
4. Foreseeable Misuse - Suppliers must anticipate rsbly foreseeable misuse
5. NOTE - Retailer may be held liable for defective product even if it had no opportunity to
inspect the product before selling it

iv. (4) Actual and Proximate Cause

1. Actual Cause: Π must demonstrate the product has not been altered since it left the Δ’s
hands. Plaintiff must prove defect existed when product left defendant’s control. This is
presumed if product moved in ordinary channels of distribution (bought it at regular
retail store).
a. Actual causation presumed if there was inadequate warning
2. Proximate Cause: Same as negligence. Defendant is liable for the foreseeable results of
conduct

v. (5) Damages
i. All parties have a duty to mitigate damages so long as it is reasonable to due so
vi. DEFENSES
1. Assumption of risk and Unforeseeable misuse (contributory negligence is NO defense)

VIII. OTHER MISCALLANEOUS TORTS

a. NUISANCE
i. Private Nuisance - A substantial, unreasonable interference with a person’s ability to use and
enjoy his own land.
1. It is NOT a tort, but a harm.
2. Interference must be offensive, inconvenient, or annoying to the average person in the
community. Not a substantial interference if Π is hypersensitive.
3. Unreasonableness is a balance of Π’s harm and utility of Δ’s conduct.
ii. Public Nuisance – act that unreasonably interferes with the health, safety, or property rights of
the community.
1. Private party may recover if injury is unique and unlike public at large.
iii. Nuisance per se (strict liability nuisance) - when wild animals or abnormally dangerous
domestic animals are involved or when Δ is engaged in abnormally dangerous activity.
Interference won't be characterized as substantial if it is merely the result of Π's specialized use
of her own property

b. ECONOMIC TORTS
i. FRAUD/DECEIT (INTENTIONAL MISREPRESENTAITON)

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1. (1) Misrepresentation of material fact

2. (2) Scienter – knew or believed statement was false or there was no basis for statement
3. (3) Intent to induce reliance for Π to act on misrepresentation
4. (4) Causation
5. (5) Justifiable reliance
6. (6) Damages
ii. NEGLIGENT MISREPRESENTATION
1. (1) Misrepresentation by Π in a business or professional capacity (DUTY)
2. (2) Breach of Duty
3. (3) Causation
4. (4) Justifiable Reliance
5. (5) Damages
iii. INTERFERENCE WITH CONTRACTUAL RELATIONS
1. (1) Valid contractual relationship b/w PL and third person or valid business expectancy
2. (2) DF’s knowledge of relationship or expectancy
3. (3) Intentional interference by DF inducing a breach or termination of relationship
4. (4) Damages

c. LITIGATION TORTS
i. MALICIOUS PROSECUTION
1. (1) Institution of criminal proceedings against Π
2. (2) Termination in Π’s favor
3. (3) Absence of Probable Cause
4. (4) Improper Purpose
5. (5) Damages
ii. ABUSE OF PROCESS
1. (1) Wrongful use of process for ulterior purpose
2. (2) Definite act or threat against Π to accomplish ulterior purpose

IX. GENERAL CONSIDERATIONS

a. VICARIOUS LIABILITY – 4 special relationships

i. (1) Employer/Employee (respondeat superior)

1. Employer is vicariously liable for the torts of the employee provided they were done
within the scope of employment
a. Minor deviation (“frolic & detour”) – employee still acting within scope of
employment
b. Generally, intentional torts are NOT within the scope of employment.
Exceptions:
i. (1) if job involves use of force (a bouncer)
ii. (2) job that generates friction/tension (debt collector, repo man)
iii. (3) employee is furthering the business of the employer

ii. (2) Hiring Party/Independent Contractor

1. General rule = no vicarious liability in this relationship, UNLESS
a. (1) land possessor is vicariously liable if contractor hurts invitee on premises, or
b. (2) where the duty is non-delegable (the contractor hurts an invitee) or
c. (3) independent contractor is engaged in inherently dangerous activity

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iii. (3) Owner of Car/Driver of Car

1. Owner of a car is not vicariously liable for torts committed by the driver
a. Exception: lending car for driver to do an errand for you; here you have
established an agency relationship and are liable.

iv. (4) Parents/Children

1. Parents not vicariously liable for the torts of their children, no exceptions.
2. LIMITATION: Parents can be liable for their OWN NEGLIGENCE however if they
negligently allowed a child to use something in the commission of a tort.

v. (5) Negligent Hiring

1. Separate than vicarious liability, doesn't have to be w/in scope of employment

b. JOINT TORTFEASOR RESPONSIBILITIES

i. Joint/Several Liability
1. MBE default is that joint tortfeasors are jointly and severally liable
2. Where two or more negligent acts combine to proximately cause an indivisible injury,
each negligent actor will be jointly and severally liable.
3. If the injury is divisible, then liability is apportioned to each Δ according to their amount
of liability.
a. Exception: where Δs act in concert with one another, each is jointly and
severally liable for entire injury, even if divisible.
b. Exception: States that have abolished joint/several liability – each Δ is liable
proportional to their fault.

ii. Contribution
1. Where there are multiple liable defendants, majority approach is to allocate the
damages from each Δ according to their amount of liability – and gives Δ who pays more
than his share of damages to have a claim against another Δ.

iii. Indemnity
1. Indemnity allows a Δ to shift the entire loss to another Δ.
a. By Contract: Available if stated in contract
b. Vicarious Liability: It is available in vicarious liability situations – where
vicariously liable party can shift loss to the active tortfeasor.
c. Strict Products Liability: Retailer can seek indemnification from manufacturer of
defective product. Can push liability up the distribution chain.

c. LOSS OF CONSORTIUM
i. This is a derivative claim. In any case where the victim of a tort is a married person, the
uninjured spouse gets a separate and different cause of action in his/her different name. That
cause of action allows the uninjured spouse to recover three types of damages that would
otherwise go uncompensated:
1. Loss of services (wife injured, need compensation for her duties)
2. Loss of society (companionship and company)
3. Loss of sex (not getting laid, want some cash)
ii. Parent also has claim for loss of CHILD’s services, but child does not have claim for loss of
parent’s services.

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