I. Intentional Torts
II. Torts against Dignity & Privacy
3. Causation
Act- Act must be volitional.
Defamation- If matter not of public
concern then Π only needs to prove: 1.
defamatory language (one that has capacity
to defame), 2. concerning Π (colloquium
may be used), 3. publication to third
person, 4. damages. If matter of public
concern, then Π also needs to prove 5.
falsity, and 6. Fault (if Π private figure,
then negligence by ∆ meets. If Π public
figure, then must show knowledge of truth
or recklessness)
Actual Causation- AC is where the Π is
obligated to demonstrate a linkage btw the
breach and the injury. But for test Can
the Π convince but for the breach, the
accident would not have occurred. Special
rules where multiple ∆s: Scenario #1
multiple ∆s and mingled causation. E.g.
two unrelated campers forget to put out
their camp fires. So two separate forest
fires started. Combined fires burn Π’s
house and Π sues both. If we use but4 test,
both ∆s will argue that even if I put out
fire, other ∆’s fire would burn the house. In
this case, we use the substantial factor
test. Just ask: did each of the ∆s contribute
to the injury in a significant way and if yes,
joint and several liability. Scenario #2
multiple ∆s and unascertainable cause. We
don’t have a mingling (Summers v. Tice).
Both acted negligently. But one bullet
harmed while the other did nothing. CA
Supreme Court shifts the burden of proof to
the ∆s. One ∆ has to show that it wasn’t his
bullet and if neither ∆ can find way out of
the case, they are both liable.
Intent- intent to cause damage or
knowledge with substantial certainty that
injury would occur. Transferred Intent- ∆
intends to commit tort against one but
injures another. Transfer intent.
(TIP: When answering an intentional torts
question, start out this way: "Π will argue
that the ∆ committed battery. To establish
the prima facie case for battery, Π will
have to prove 1. intent, 2. harmful or
offensive contact, 3. with plaintiff’s person,
and 4. causation." Then go through each
individual element.
(i) Intentional Torts Against Person
Battery- 1. harmful or offensive contact
(offensiveness judged from reasonable
person standard, contact can be direct or
indirect), 2. with Π’s person (includes
anything connected to Π- e.g. Π walking a
dog), 3. Intent, 4. Causation.
Assault- 1. act by ∆ that creates reasonable
apprehension (apprehension doesn’t mean
fear) 2. of immediate harmful or offensive
contact (words can negate immediacy) 3.
intent 4. causation.
False Imprisonment- 1. act or omission by
∆ that confines Π (force, threats, invalid
arrest, but not moral pressure) 2. in a
bounded area (no reasonable known
methods of escape) 3. intent 4. causation 5.
damages (damages if Π actually harmed or
is aware of her restrain in movement)
Interesting Example- ∆ drove Π to desert
and tried to have sex with her. After Π
refused, ∆ left her in the desert and drove
off. Considered false imprisonment.
Intentional Infliction of Emotional
Distress- 1. extreme & outrageous conduct
by ∆ (beyond all bounds of decency, or
continuous offensive conduct or conduct
directed at children, elderly, pregnant
woman, super sensitive adult and ∆ knows)
Damages- Presumed when libel (written)
or slander per se (1. statement regarding
Π’s profession, 2. saying Π guilty of crime
of moral turpitude, 3. statement imputing
unchastity of a woman, 4. statement that Π
has a loathsome disease), when just slander
Π must prove damages.
Defenses to Defamation- Consent, Truth,
Absolute Privilege (remarks made in
legislative or judicial proceedings, fed.
Executive officials, conversations btw.
Spouses), Qualified Privilege (reports of
official proceedings, statements of common
interests, etc.).
Invasion of Privacy (4 different Torts)
1. Appropriation- unauthorized use of Π’s
name or picture for ∆’s commercial use.
2. Intrusion upon seclusion- Invasion of
Π’s seclusion that is objectionable to
reasonable person.
3. False Light- widespread dissemination
of a major misrepresentation that is
objectionable to average person (doesn’t
have to be defamatory, e.g. saying Π is
Jewish when he is not. Not defamatory)
4. Disclosure- Widespread dissemination
of confidential info about Π that would be
objectionable to reasonable person (news
worthiness exception).
Defenses- Consent, Absolute Privilege,
Legal Causation (proximate cause)Determines fairness of holding ∆ liable.
Fairness is determined by foreseeability.
Legal cause questions are divisible into two
categories. 1. Questions involving direct
cause fact patters ∆ commits the breach
and Π suffers immediately. In a direct
cause case, it is almost always foreseeable
and therefore fair. 2. Indirect cause cases
∆ commits the breach, something else
happens, and only then does the Π suffers
injury. There are four specific indirect
patters, and in all four ∆ is liable. #1
intervening negligent medical treatment
we think it is foreseeable that when injure
someone, doctors can make things worse.
FOOTNOTE doctor is liable too joint
liability. #2 intervening negligent
rescue it is foreseeable so liable.
#3 intervening protection or reaction
forces. Foreseeable so proximate cause.
#4 subsequent disease or accident e.g.
broken leg and then next day falls off
crutches, ∆ liable for the subsequent
2. that causes severe emotional distress 3.
Intent or recklessness (only intentional tort
where recklessness substitute for real
intent) 4. causation 5. damages (severe
emotional distress). Bystander Remedycan only recover if close relative and ∆
knows.
Qualified Privilege.
(ii) Intentional Torts against
Personal/Real Property
1. Duty – i. To whom do you owe duty?
Foreseeable victims. Majority "Zone of
Danger" rule. Minority Andrews ruleOwe duty to everyone.
Trespass- 1. physical invasion of Π’s real
property (invasion can be by any intangible
object e.g. throw ball; property also
includes space above and below land to
reasonable distance), 2. intent (intent only
to go on property. Not required that ∆
knows trespassing), 3. causation.
Trespass to Chattel- 1. ∆’s act that
interferes with Πs rt. to possession of
chattel (can be by damage to chattel or
dispossession), 2. intent, 3. causation, and
4. Damages (actual damages)
Conversion- 1. act by ∆ that interferes
with Π’s right to possession, 2. interference
so serious that ∆ must pay chattel’s full
value, 3. intent, 4. causation. Π is awarded
the FMV of chattel @ the time of
conversion.
(iii) Defenses to Intentional Torts
Consent- 1. has to be valid consent (Π has
capacity to consent, consent cannot be
obtained by fraud or deceit), 2. ∆ must
have remained within the bounds of
consent. Two types of consents: Express or
Implied
Self-Defense- ∆ reasonably believes he is
about to be attacked and may use
reasonable force. (most states require
retrieval if can be done before using deadly
force, defense not available to initial
aggressors, reasonable mistake allowed).
Defense of Others- can use force to protect
another if ∆ reasonably believes the other
could use force to defend himself (minority
states put ∆ in the other’s shoes).
III. NEGLIGENCE
TIP- Start your negligence answer by
listing all the elements and then go through
each element individually.
ii. How much precaution is required?
Reasonable person standard of care. Two
exceptions- if person of superior
knowledge about situation (e.g. Doctor)
then reasonable professional standard. If
person with distinct physical characteristics
(e.g. blind) then reasonable blind person
standard.
injuries. But if indirect fact patter. Then
have to do case-by-case analysis. Look at
the wrongful conduct and ask: why am I
calling it negligent in the first place? Then
go to the end of the pattern, is this what I
was worried about. If match, then
foreseeable and if not, opposite result.
Example restaurant serving bad shrimp.
Person eats and sick and friend slips on
vomit. So ask: why is serving bad shrimp
bad outcome broken. This is not a
match so not fair to make the restaurant
pay for friend’s broken leg.
4. Damages
Eggshell skull doctrine A ∆ takes his Π
as he finds the Π. This rule applies to every
tort, not just negligence.
Affirmative Defenses to Negligence
Children- standard of child of similar age,
experience and intelligence. But if child
involved in adult activity, then reasonable
person standard.
Historically there were 2 (now abolished
by most states)
Traditional Contributory defenses
Duty owed by owners/occupiers of land
Traditional assumption of risk
Undiscovered Trespassers- No duty
Discovered Trespassers- duty to warn of
known, nonobvious, and highly dangerous
conditions.
Infant Trespassers (Attractive Nuisance)owner has duty to warn or make safe
artificial conditions if 1. owner is or should
be aware of condition, 2. owner knows or
should know that children visit land, 3.
children incapacity to appreciate danger, 4.
expense of fixing situation lower than the
risk presented.
Licensee- Duty to warn or make safe
known and nonobvious dangerous
conditions.
Comparative negligence- ∆ begins by
establishing that the Π is guilty of some
fault. Failure of the Π to take reasonable
precaution for his/her safety. The jury is
instructed to weigh the faults and give each
a numerical percentage. Π’s recovery will
be reduced in accordance with his
percentage of fault.
2 variants: 1. pure comparative
negligence go strictly by the jury
numbers (this is the default rule on the bar
exam). 2. Partial/modified comparative
negligence Π’s fault of less than 50%
will reduce recovery but if >50% then
absolute bar.
IV. Strict Liability
Invitees- Duty to warn or make safe
nonobvious conditions that owner knew or
should have known about.
Elements- 1. Duty (strict), 2. Breach, 3.
Causation (actual & proximate), Damages
Defense of Property- may use reasonable
force to prevent tort against personal/real
property. But can never use deadly force
unless person poses threat of death or
serious injury to others on property.
Request to desist or leave must made
before using force, unless would be futile.
Force may be used to recover property
when in hot pursuit or if other came in
possession of property wrongfully. If other
came in possession lawfully, then peaceful
means must be used. Can enter the land of
tortfeasor or innocent person to recover
property, but if property there due to
owner’s fault, then no privilege and must
use legal process to recover.
Firefighters Rule- Firefighters and police
officers never recover from injury that is
inherent condition of the job.
Three Situations Where SL Used
Statutory Standard of Care- Two part test
to see whether violation of statute
negligence per se
-injury/damage caused by domesticated
pets with know vicious propensities
Privilege to Arrest- Officer may arrest for
felony if reasonably believes that felony
committed and person arrested committed
it. A citizen may arrest for felony if felony
in fact committed and reasonably believes
person committed it. Officer and citizen
may arrest for misdemeanor breach of
peace if committed in their presence (but
deadly force never used for misdemeanor)
Two Exceptions to this rule:
Necessity- may interfere with personal or
real property if necessity. Public Necessity∆ off the hook completely, Private
Necessity- Person must pay for damage to
property.
Discipline- privilege for parents and
teachers, but only reasonable force
Shopkeepers Privilege- reasonable belief
and only for reasonable time & manner.
(iv) Random Intentional Torts
Fraud- 1. misrepresentation of material
fact 2. scienter, 3. intent to induce Π 4.
causation 5. justifiable reliance.
Malicious Prosecution- 1. Criminal
proceedings against Π, 2. Termination in
favor or Π, 3. without probable cause, 4.
for improper purpose, 5. damages.
Abuse of Process- use of legal process for
ulterior purpose & definite step towards the
1. Π is a member of the class of persons
that the statute seeks to protect.
2. Accident is within the class of risks that
the statute seeks to prevent.
So test- class of person class of risk test!
1. Strict Liability for Animals
-injury/damage caused by trespassing cattle
-injury/damage caused by wild animals
2. Ultrahazardous Activities
Activity cannot be made safe, poses a risk
of severe harm, activity uncommon in area
where conducted.
3. Consumer Products
1. statutory compliance would be more
dangerous than statutory violation, then
don’t borrow the statute.
2. If compliance is impossible under the
circumstances, don’t borrow the statute
Strictly liable if ∆ merchant, product
defective (manufacturing, design,
inadequate warning), defect existed when
left ∆, Π was making foreseeable use of
product.
Affirmative Duty to Act- Generally no. But
duty when 1. ∆ cause of peril, 2. common
carrier or innkeeper, 3. family relationship,
landowner-invitee. If no duty but still
rescue, must do it reasonably.
TIP: products liability cases can also be
handled under negligence, breach of
warranty of merchantability, breach of
express warranty, breach of warranty for a
particular purpose.
Negligent Infliction of Emotional Distress-
*No strict liability for mere economic loss.
A person being sued for NIED must have
committed a negligent act under one of the
other duties we talked about (e.g. breach of
reasonable prudence, breach of statute,
breach of land occupier’s) + law requires 2
more factors
Defenses to Strict Liability
1. even though the Π does not receive
direct physical injury, he must have been in
the zone of physical danger (e.g. ∆ run
though red light and Π almost got hit but
didn’t. Meets because ∆ breached duty, and
Π in zone of danger).
Private- Unreasonable & substantial
interference with Π’s use & enjoyment of
his property.
2. Π must show subsequent physical
manifestations of the distress (e.g. heart
attack, miscarriage, etc.) Exceptions: no
physical symptoms required if 1.
Negligently inform Π that his close family
Majority has shifted to comparative neg.
V. Nuisance
Public- ∆’s acts that unreasonably interfere
with a community’s health, safety, or
property rights. Π must suffer special
damages to bring lawsuit.
**Coming to Nuisance is no defense.
accomplishment of that purpose.
Tortious Interference with Contractual
Relations- purposeful interference with a
valid existing contract.
Interference with Prospective
Advantage- malicious or fraudulent
interference with future contract.
member died or 2. If mishandle corpse of
Π’s relative.
½ of the states have bystander distress
recovery. Available where a distress Π
witnesses a negligent injury to a close
family member. In regular NIED case, fear
for own injury, but here emotion is sorrow
for seeing a loved one get injured. Close
family member differs state-by-state. IN
CA, you have to be there, but in MA, ok if
come a minute of 2 later. So not
responsible for details.
VI. Vicarious Liability
Employer-Employee- respondeat superior
(liable if within scope of employment and
not frolic).
Independent Contractor- not liable, but
liable if land owner and invitee injured,
also liable if independent contractor
engaged in inherently dangerous activity,
also liable if liability nondelegable.
Auto Owner-Driver- not liable unless
driver acting as owner’s agent.
2. Breach of Duty
Π has to identify what the ∆ did wrong. Π
also has to show why the conduct fell short
of reasonable prudence.
TIP Typical essay format for breach:
"Here, plaintiff will allege that the ∆ did
not act reasonably because he . . . This is
not reasonable because . . ."
Res Ipsa Loquitur Used by parties who
are unable to tell us what went wrong.
Must show: 1. Accident which occurred
doesn’t normally occur in the absence of
negligence. 2. This type of accident
normally happens because of negligence of
someone in ∆’s position.
Res ipsa is just a way to get to the jury and
no promise of victory.
Parent-Kids- Not vicarious liable for kids
actions. But may be negligent.
Joint Tortfeasors- multiple ∆s, Π can
recover whole amount from any ∆.
Contribution- ∆ can recover from other ∆s
if paid Π more than his share of liability.
Indemnification- situations where ∆
vicariously liable and can recover whole
amount from tortfeasor.
VII. Random Issues
Loss of Consortium- uninjured spouse’s
claim against tortfeasor (loss of services,
sex). Kids CANNNOT recover for injuries
to parents.