Torts

I. Intentional Torts
A. Generally
1. Voluntary act done with requisite intent that causes harm
2. Act -> voluntary OR failure to act where there is a duty to do so
3. Intent -> deliberately, purposefully OR knows with substantial certainty
a. Transferred Intent:
(i) From 1 person to another
(ii) A different intentional tort
(iii) A different intentional tort vs. a different person
4. Causation -> was legal cause of victim’s injury, was substantial factor
B. Harms to the Person
1. Battery
a. A harmful or offensive contact with the person of another that is caused
by an intentional act of the D.
b. Harmful or offensive contact -> R. person standard; look for whether P.
consented; hypersensitive? NO-> unless D. knows
c. P’s person -> anything connected to
d. Causation -> includes D. who sets in motion a chain of events (indirect
contact)
e. Intent -> transferred intent applies
f. Damages -> don’t have to show actual damages or harm; can recover
nominal damages + punitive (if D acted with malice)
2. Assault
a. An intentional overt act causes P to experience R. apprehension of an
immediate battery
b. Intent -> transferred intent applies
c. Overt Act -> words alone not enough; OK /w conduct or circums
d. R. apprehension -> NOT fear, just aware; R. standard
e. Immediacy -> w/o sig. delay
f. Damages -> same
3. False Imprisonment
a. Acts intentionally to confine or restrain another to a bounded area and
these actions directly or indirectly results in such confinement
b. Intent -> transferred intent applies
c. Confine or restrain -> physical lock or body block, direct or indirect
threat; make no R. means of escape available; invalide use of legal authority;
Shopkeeper’s Privilege (can detain for R. time and manner); NOT moral
pressure or future threats or consent; must show awareness unless suffer harm
(Rest.)
d. Bounded area -> no R. means of escape + discoverable
e. Damages -> same (except when unaware)

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 4. Intentional Infliction of Emotional Distress
a. Intentionally or recklessly acting with extreme or outrageous conduct that
causes P. severe ED
b. Intent -> NO transferred intent b/c very personal
c. Extreme or Outrageous -> exceeds bounds of civility, decency;
continuous pattern, group /w known heightened sensitivity, by common
carrier or innkeeper (held to higher standard)
d. Third Party -> immediate family member, bystander (if bodily injury +
aim)
e. Causation -> for family: P’s presence + close relative + D had knowledge
f. Damages -> need to show actually damages
C. Harms to Property Interests
1. Trespass to Land
a. Occurs when there is an intentional act causes a physical invasion of the
land of another
b. Intent -> transferred intent, intend to engage in physical act of entry NOT
TP specifically; mistake of fact NOT a defense
c. Physical Invasion -> non-physical entry OK; on, below or below;
overstay; v. nuisance: maybe no physical matter has entered
d. Standing -> anyone in actual or constructive possession
e. Damages -> same
2. Trespass to Chattels
a. D. has to intentionally commit an act that interferes with P’s right of
possession of the chattel (tangible object) and causes damage
b. Intent -> transferred intent, mistake of fact NOT a defense
c. Interference -> (a) dispossess P of chattel (D puts his use above P’s) OR
(b) intermeddle (making it more difficult for P to use)
d. Standing -> immediate right of possession
e. Damages -> must prove loss of use OR actual damages caused (R. rental
value, diminution in value or cost of repair)
3. Conversion
a. Occurs when D intentionally commits an act of possession or interference
with P’s chattel so serious that he deprives P of chattel and has to pay full
value at the time of conversion; (chattel MUST be physical form, check OK)
b. Intent -> doesn’t have to be intent to cause damage, only to commit act of
interference; NOT if accidental damage while D had legitimate possession
c. Interference -> wrongfully acquire, transfer, alter, detention, misuse; if
acquisition was not wrongful, P must demand return
d. Serious -> factors: duration and extent of interference, D’s intended, acted
in good faith, significant expense or inconvenient, extent of harm
e. Damages -> value at time of conversion OR Replevin (return of chattel)

D. Defenses to Intentional Torts to Persons and Property

1. Consent

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 a. Express -> by words or actions; D cannot exceed scope of consent; if P
makes mistake and D takes advantage; NO consent by fraud or duress
b. Implied -> silence, implied by law (emergency surgery) or custom (sport)
c. Capacity - > age, incompetent, intoxicated
2. Self Defense
a. Proportional -> force be proportion to threat
(i) Non-deadly force -> allowed to defend against offensive contact/harm
(ii) Deadly force -> only when R. belief of death or serious bodily injury
b. Retreat -> most JD’s: no duty to retreat; recent trend: duty to retreat so
long as you can do so safely UNLESS in or in curtilage of your own home;
Restatement: duty to retreat before use deadly force IF you can do so safely
c. Initial aggressor -> can’t claim SD unless other party responded to non-
deadly force with deadly force
d. Third Party injury -> if using SD, not liable to bystanders if accidental and
NOT deliberate
3. Defense of Others
a. Proportionate; mistake? -> OK, so long as R. belief
4. Defense of Property
a. R. and proportionate
b. NO deadly force (unless personally threatened, use SD)
5. Recapture of Chattels
a. R. force to reclaim personal property that has been taken from you
b. If original taking lawful -> only peaceful means allowed
c. Land -> CL: can use R. force to regain possession; NOW: no self help
6. Parental Discipline -> R.
7. Necessity
a. Enter land of another to prevent injury that’s sub. More serious that
invasion itself
b. Private necessity -> resulting harm to small # of persons or your own
property (but will have to pay damages)
c. Public necessity -> affect large # of people (absolute privilege; if R.
belief, NOT liable for damages, lasts only as long as emergency continues
8. Privilege of Arrest
a. Felony
(i) Private citizen -> felony as in fact been committed; R. belief that
suspect committed it
(ii) Police officer -> R. belief committed and that suspect committed
b. Misdemeanor -> has to be breach of peace that occurs in your presence

II. Negligence

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 ** Commission of an act (or failure to act), w/o wrongful intent, that falls below
the minimum degree of ordinary care imposed by law to protect others against
unR. risk of harm
**Duty, Breach, Causation, Damages

A. Duty
1. Failure to Act -> in some cases, you have more than a moral obligation to
act
2. To whom are you obligated? F. P’s
a. Majority – Cardozo view: P’s who are w/in zone of foreseeable harm
b. Minority – Andrews view: if D breached duty to anyone, same duty is
owed to everyone (F. or not) harmed as a result of breach
3. Obligations to control conduct of Third Parties
a. Special relationship with actor
b. Special relationship to victim
B. The Standard of Care
1. That level of care that a R. prudent person would use under the
circumstances
2. Objective standard UNLESS
a. D’s particular physical characteristics (e.g. blind – R. blind person)
b. Custom (practice engaged in by substantial minority of persons who are
in the same calling or business) – a factor, but NOT decisive
c. Children -> R. child under age, education, experience UNLESS engaging
in adult activity, then held to adult standard
d. Professionals -> customary in the profession; similar skills and training
e. Informed Consent -> what R. patient would want to know; Need NOT
disclose
(i) Commonly known risk;
(ii) Patient waived or refuses the info
(iii) Patient is incompetent, but will have to attempt to find guardian
(iv)Disclosure would be counterproductive or more harmful
f. Common carriers & innkeepers
g. Car drivers -> Auto Guest Statutes: if paying passenger, then can
demand R. care of driver; if not, then can only bring action for gross
negligence or worse
3. Standards For Owners and Occupiers of Land
a. Trespassers
(i) One who enters w/o privilege or consent
(ii) Refrain from willful, wanton or intentional misconduct
(iii) Discovered trespassers -> protect against concealed dangerous
artificial conditions
(iv)Children: Attractive Nuisance (artificial conditions)
(a) Children likely to TP
(b) Knows condition poses unR. risk of death or serious
bodily injury
(c) Children cannot appreciate danger

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 (d) Utility to landowner v. burden in eliminating
(e) Landowner fails to exercise R. care
b. Licensee
(i) Enters with privilege or consent from landowner (e.g. a social guest)
(ii) Duty to warn of known dangerous conditions + not likely to discover
(iii) R. care in conducting activities on land
c. Invitee
(i) Licensee + enters for some purpose of landowner
(ii) Business or public invitee
(iii) R. care + duty to warn -> R. care to inspect, repair
(iv)Does NOT extend beyond scope of invitation
d. Lessor
(i) Duty to warn lessee of any known existing defects that are not likely to
be discovered
(ii) Common areas
4. Emergencies -> R. person in same emergency, but only if D. didn’t cause
5. Negligence Per Se
a. Violations of a criminal statute or administrative regulation
b. P must show:
(i) In class of person statute intended to protect
(ii) Interest was of the type intended to be protected
(iii) Harm “
(iv)Harm arose in the manner that was of legislative concern
6. Affirmative Duty to Act
a. Voluntarily assume a duty
b. Placing another in peril
c. By contract
d. By authority
e. By relationship
C. Proof of Fault
1. Burden of Proof -> P. must show by a preponderance of the evidence that
each element of the tort action has been satisfied (more probable than not)
2. Res Ipsa Loquiter
a. The thing speaks for itself
b. P must show 3 elements to est. prima facie case (has to go to jury, no
directed verdict)
(i) Instrumentality or condition was in D’s exclusive control
(ii) Would not have occurred in the absence of negligence
(iii) P. not voluntarily contribute
c. D. can rebut
d. n/a if there is direct evidence of the cause of the injury -> systematic lack
or bar to getting evidence

D. Causation

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 1. Actual cause (cause-in-fact)
a. P. has to est. by preponderance of the evidence that “but for” D’s act, he
wouldn’t have been injured
b. Multiple causes/actors? ->
(i) est. substantial factor in bringing about injury
(ii) OR shift BofProof to D if can’t tell (only apply to small # of D’s)
2. Proximate cause (legal cause)
a. Injuries within zone of danger created by D’s unR. conduct
b. Very close cx in time and space EXCEPT if intervening force unF.
c. D starts a natural and continuous sequence
d. Superseding cause -> when BOTH intervening cause + result/harm unF.
E. Damages
1. Must show actual damages
2. nominal damages not allowed
3. Duty to mitigate – R. steps (go to Dr.)
4. Personal injury -> pecuniary damages (lost wages, medical, loss of
consortium, pain and suffering; eggshell skull -> may still have to pay full
cost of treatment (take victim as you find him)
5. Property damage -> repair, replacing or loss of use, or FMV if destroyed
6. Collateral Source Rule -> P’s insurance NOT credited and inadmissible
7. Punitive damages -> can recover if P shows by clear and convincing
evidence that D acted recklessly, willfully or with malice
F. Special Rules of Liability
1. Negligent Infliction of Emotional Distress
a. P. can recover from D who creates a F. risk of injury to P which causes
(i) A threat of physical impact that leads to emotional distress OR
(ii) Severe ED likely to result in physical harm
b. Threat of impact -> directed at P or someone in immediate presence
c. Zone of Danger -> for bystander BUT emerging trend:
(i) Closely related
(ii) Present at scene of injury
(iii) Witnessed (personally observed or o/w perceived) – sensory
d. Some physical injury required EXCEPT misinforming of a family death
OR negligent mishandling of corpse
2. Wrongful Death
a. Victim died as a result of D’s misconduct -> spouse or next of kin can
recover pecuniary damages for losses (loss of support, companionship,
affection but NOT pain and suffering)
b. Survival Action -> allow decedent’s estate to recover as though lived
(i) All of lost wages, medical expenses, pain & suffering before death
c. CANNOT recover for intangible personal assets (e.g. defamation)
3. Interference with Family Relationships
a. Spouses -> pecuniary (services) + non-pecuniary (companionship, etc.)
b. Parent-Child -> same as for spouse
G. Other Liability Issues

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 1. Vicarious Liability
a. Respondeat superior -> let the superior answer for it; Employers
(i) Acting in scope of employment
(a) Employed to perform
(b) w/in authorized limits of time and space
(c) performed for purpose of serving employer
(ii) NOT responsible for intentional torts EXCEPT if nature of work OR
(iii) Gave him opportunity to commit tort
(iv)May be liable for detour but not frolic
(v) Negligent hiring -> hiring, training or retention -> PRIMARY NEG
b. Independent contractors -> generally NO except:
(i) Non-delegable duty (affects public at large or rel. with particular P
(ii) Inherently dangerous work
(iii) Neg. in selecting or instructing (Primary)
c. Business partners -> yes for tortuous acts of partners w/in scope of
business purpose
d. Automobile owners
(i) Negligent entrustment -> know or should know person is not fit to
drive
(ii) Family use or permissive use statutes
e. Parents and their children -> generally no EXCEPT:
(i) Give a dangerous object that knows child can’t handle
(ii) Failure to protect against child’s known dangerous tendency
f. Dram Shop Acts -> commercial vendor strict liability
g. Government Actor
(i) Federal (and State): Federal Tort Claims Acts -> waives govt.
immunity EXCEPT:
(a) Certain enumerated torts
(b) Discretionary activity (e.g. planning)
(c) Govt. contractors in products liability
(ii) Municipalities ->
(a) liability limited by public duty rule
(b) Govt. v. proprietary function
2. Multiple D’s
a. Joint and several liability – when 2 or more persons combine to produce
a single indivisible harm, each is liable for entire amount of damages; applies
in 2 circumstances:
(i) D’s act in concert with one another OR
(ii) D’s act concurrently & independently (P. must have indivisible injury
for J&S to apply
b. Satisfaction and release -> if P fully recovers can’t pursue further action
c. Contribution -> modern trend to apportion
d. Indemnity -> entire loss shifted from one D. to another (e.g. employer,
contract, moral equity (trivial v. sig. error), additional harm by another D.

H. Defenses

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 1. Contributory Negligence -> did P. breach duty of self care that
cause or contributed to his injury
a. NOT defense if D’s negligence was worse OR for intentional tort
b. Tempered with Last Clear Chance (only applies in cont. neg. JDs)
(i) D had last clear chance to avoid injury, but failed to do so
(ii) Helpless peril -> if D knows or should have know, then liable
(iii) Oblivious peril -> D liable only if has actual knowledge
c. Comparative negligence states
(i) Pure comparative neg -> treats all as party to the accident; look at how
bad P’s mistake was and recovery reduced by that amount
(ii) Modified comparative neg -> P barred by = or more neg. than D.
2. Assumption of Risk
a. Express -> agreement, P knowingly and voluntarily assumed risk of harm
(subjective standard)
b. Implied -> not voluntary if no alternative OR emergency
c. If injury virtually certain, then it’s consent

III. Strict Liability

**Prime facie case requires: (regardless of precautions take)
(i) Duty to make P’s person or property safe
(ii) Breach
(iii) Actual and proximate causation
(iv)Damages

DAD: Dangerous Activity, Animals, Defective/Dangerous Products

A. Abnormally Dangerous Activities

1. Inherently Dangerous (involves risk and harm)
2. NOT commonplace
3. Cannot be performed with complete safety
B. Rylands V. Fletcher -> SL when you bring something onto his land that escapes
C. Animals
1. Trespassers
a. Humans -> NOT SL, except for injuries by a vicious watchdog (but may
have neg.)
b. Licensees and invitees -> can recover for wild or Ab. Dang. Animal
c. Animals -> owner SL for R.F. damage caused by his trespassing animal
(other than household pets)
2. Wild Animals -> SL (so long as P. didn’t knowingly do anything)
3. Domestic Animals -> SL if D knows or has reason to know of dangerous
propensities

D. Defenses

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 1. Contributory Neg -> NO
2. Comparative Neg -> YES, reduce amount of damages
3. Assumption of Risk -> YES, “knowing contributory negligence”
4. Statutory Privilege -> NO for performance of essential public service (but
still can be negligence)

IV. Products Liability

A. Reasons:
1. Defect in design
2. Defect in manufacture
3. Failure to adequately warn of hazard related to F. use of the product
B. Negligence [Products Liability]
1. Duty to any F. P (purchaser, user, F. bystander)
2. Breach -> failure to exercise R. care -> negligent design, manufacture,
inspection, warnings
3. Causation -> show mistake was but for and proximate cause
4. Damages -> personal injury + property; NOT pure economic losses
(recover under K – breach of warranties)
C. Strict Liability [Products Liability]
*Product has to involve defect that is unR. dangerous to user
(i) Supplier is in business of selling the product AND
(ii) Product arrive in substantially unaltered condition
*NOT looking at conduct of D – just quality of the product
* Scope of duty based on F. of victim (privity NOT req’d)
* P can rely on SL action even if F. misused (e.g. car crash)

1. Manufacturing Defect
a. Product not made as intended (per specs) and harms P
b. Must prove:
(i) Product was defectively manufactured
(ii) Defect existed when product left D’s control
(iii) Defect caused P’s injury
(iv)P used product in R.F. way
2. Design Defect
a. 2 approaches:
(i) Consumer expectation test: Dangerous beyond expectation of
ordinary consumer?
(ii) R. alternative design
b. Must prove -> same, except (i) defectively designed

3. Failure to Warn

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 a. F. risk of harm, not readily recognized by ordinary user of product, which
could have been reduced or avoided by providing R. warnings
b. Even if put warning, may not discharge D’s obligations
c. Seller sells with known defect w/o warning -> superseding cause
4. Damages -> same as for neg.
5. Defenses -> comp., assumption of risk (bar), contrib.. (failed to discover
or misused in R.F. way); misuse (NOT if F.); substantial change (cut off
liability of manufacturer)
D. Breach of Warranties
**Bring action against retailers (includes restaurants)
1. Implied Warranties
a. Implied Warranty of Merchantability -> product is fit for the
ordinary purpose for which it’s being sold; seller MUST be a merchant
b. Implied Warranty of Fitness for a Particular Purpose ->
seller aware P. has a particular purpose and P has relied on Seller’s skill
c. P need not prove fault; may recover personal injury, property damage
AND purely economic loss;
d. Assumption of risk and contributory neg. are defenses AND any contract-
based defenses
2. Express Warranties
a. Must show
(i) Representation of fact – not mere opinion
(ii) Basis of bargain – material to consumer
b. Seller can make in literature AND advertising OR oral statement
c. Disclaimer -> potential defense but needs to be consistent with warranty
d. Defenses: unF. Product misuse, assumption of risk, no prompt notice
e. Damages -> same as for implied

V. Other Torts
A. Nuisance
1. Private
a. A thing or activity that substantially and unR. interferes with another
individual’s use or enjoyment of his property;
b. Need NOT prove intent or negligence
c. Need NOT prove physical invasion
d. Who can bring? Anyone with possessory rights
e. Substantial Interference -> Offensive, annoy, inconvenience a typical
member of the community
f. UnR. -> if harm caused outweighs utility to D
2. Public
a. unR. interference with a common right to all members of the community
b. Criminal prosecution or civil suit by govt is the ONLY remedy
c. UNLESS P suffers particular harm different than general public
3. Remedies

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 a. Damages (mainly) -> depreciation, personal injury – apportioned
b. Injunctive relief -> usually if $$ inadequate; Ct will balance hardships
c. Abatement – self help
(i) Private -> Notice + use R. force
(ii) Public -> if unique burden, may act
4. Defenses
a. Regulatory compliance (but not conclusive)
b. Coming to the nuisance -> if purchased in good faith, not a defense
c. Contributory neg -> only if resulted from D’s negligence OR if P
voluntarily & unR. subjected himself to the risk of harm
B. Defamation
1. Defamatory language
a. Language that diminishes respect, esteem or goodwill toward P, or that
deters others from associating with P.
b. Has to rooted in fact (or D implies there is a factual basis)
c. Types
(i) Libel -> written, memorialized in some form
(ii) Slander -> not written
2. “Of or Concerning” the Plaintiff
a. R. person would understand statement refers to P. + holds him to scorn
and ridicule
3. Publication
a. Intentional or neg. communication to 3rd party – NOT if simply overhear
4. Damages P’s reputation
5. Fault
a. CL -> defamatory statements assume false; burden on D to show truth
b. Public Figure -> know to general public; injects into public eye
(i) P must prove actual malice -> D knows false OR reckless disregard
c. Limited Public Figure -> treated as public for their limited purpose
d. Private Figure
(i) Matter of public concern -> P must show actual malice or negligence
(ii) NOT public concern -> P must show only neg.
6. Damages
a. General -> arise b/c of harm to reputation - compensatory
b. Special -> e.g. if P proves economic harm (lost job)
c. Libel -> special damages need not be est. UNLESS P needs to prove
extrinsic facts (unless would have been slander per se if oral)
d. Slander -> P can ONLY recover by showing special damages UNLESS
slander per se
(i) Directly relate to P’s abilities in profession, business, trade
(ii) Loathsome disease
(iii) Unchastity in woman
(iv)Guilty of crime of moral turpitude
7. Defenses
a. Truth (but look for IIED or invasion of privacy)
b. Consent (by P.), but can’t exceed scope of consent

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 c. Privilege
(i) Absolute (but can’t exceed scope)
(a) Judicial proceedings
(b) Legislative proceedings
(c) b/w husband and wife
(d) Required publication by media outlets
(ii) Qualified (but can’t abuse by exceeding scope OR /w malice)
(a) Matter of public concern
(b) Relates to interest of publisher (D)
(c) Relates to interest of a 3rd party or recipient
C. Invasion of Privacy [I FLAP]
1. Appropriation of P’s Picture or Name
a. P must prove D’s unauthorized use of P’s picture or name for D’s
commercial advantage
b. UnR. Intrusion upon P’s Affairs or Seclusion
(i) Intruding into P’s private affairs; objectionable to R. person
(ii) No publication requirement
c. Placing P in False Light
(i) D makes public facts about P in a false light objectionable to R.
person
(ii) E.g. P’s views he doesn’t hold OR actions he didn’t take
(iii) If matter in public interest, P must show actual malice
d. Public Disclosure of Private Faces about P.
(i) D publicly discloses private facts if it’s something R. person would
object
(ii) Newsworthy? -> NO
2. Damages -> P does NOT prove special damages; emotional and mental
distress sufficien
3. Defenses -> Consent (but not mistaken); absolute & qualified privileges
for FL & P; NOT truth
D. Misrepresentation
1. Intentional Misrepresentation
a. Six elements:
(i) D made false misrepresentation; even omission if
(a) Fiduciary duy
(b) D’s utterance is deceptive or misleading
(c) Active concealment of material fact
(d) Failure to disclose of new info
(ii) Scienter -> knowingly OR reckless disregard of truth
(iii) Intent -> to induce P to act (or refrain from acting) in reliance
(iv)Causation -> caused P to act to not – actual reliance
(v) Justifiable Reliance -> NOT if obviously false or stating lay opinion
(vi)Damages -> must prove actual economic loss; NO nominal

2. Negligent Misrepresentation

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 a. Elements -> Misrep, breach of duty, causation, just. Reliance, damages
b. Seen in professional situations – commercial tx
c. Damages -> out-o-pocket + consequential
E. Intentional Interference with Business Relations
1. Elements:
a. D knew of K. relationship b/w P & 3rd party (or valid business expectancy)
b. Intentional interference by D -> NOT negligence
c. Resulted in breach of K or termination of expectancy
d. Damages by P
2. Interference
a. NOT enough to take advantage of K that’s already been breached
b. Inducing Breach -> K has to be valid + NOT be terminable at will
c. Make performance unR difficult
d. Interfere with prospective economic advantage
e. Theft of trade secrets -> valid trade secret, improper means, belongs to P,
P. takes R. precautions
3. Damages -> economic losses; maybe punitive + ED
4. Defenses -> D shows intentional act was proper way to compete for
business OR intended to protect D’s interests
F. Trade Libel
1. Statements directed at P’s business or products;
2. Must show special damages; NO recovery for ED
3. Elements:
a. Publication
b. Derogatory statement
c. Relating to P’s title to business property, quality of business or products
d. Interference or damage to business relationships
4. If attack personally, could also be defamation
G. Wrongful Institution of Legal Proceedings
1. Malicious Prosecution
a. Elements
(i) Intentional and malicious institution or pursuit, or causes
(ii) For an improper purpose
(iii) A legal action with NO probably cause
(iv)Action dismissed in P’s favour
b. Damages -> legal expenses, economic (lost work), loss of reputation, ED
c. Judges & Prosecutors -> absolute immunity – can’t be sued for this
2. Abuse of Process
a. Misuse of power of the court
b. D liable for harm caused b/c instituted legal proceeding in wrongful
manner to accomplish a purpose for which it wasn’t intended
c. Damages -> need to prove special damages (but don’t need to prove ill
will or spite)

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