Torts Outline
I.
Summary
a. Negligence
i. Duty, Breach, Causation, Damages
b. Strict Liability
i. 3 situations
c. Products Liability
d. Intentional Torts
e. Invasion of Privacy/Constitutional Torts
f. Apportionment Among Multiple Tortfeasors
II.
Negligence
a. Generally
i. Negligence = “Conduct which is unreasonable under the circumstances”
ii. 4 Elements:
1. Duty
2. Breach
3. Proximate Cause
4. Damages
b. Duty
i. General Rule: There is NO duty to act
1. There MUST be a duty before Defendant can be liable for
negligence
2. Duty = Obligation to behave in a certain way; to act reasonable
under the circumstances
ii. Source of Duty
1. Statute that requires or prohibits action (i.e. Illegal to drive drunk)
2. Custom/Contract (i.e. Parents care for children, medical standard
of care, contract to do a job)
3. Common Law
a. Undertaking to act, even in the absence of a duty to act
b. Premises Liability
i. Owner/occupier of land may owe duty to person
injured on/near owner’s land
iii. Duty to Act
1. General Rule: There is NO duty to act
2. Commission: Undertaking to act, even where no previous duty
existed, creates a duty to act reasonably under the circumstances
a. If undertake act to come to the aid of another in peril:
i. Good Samaritan RULE = Good Samaritan IS liable if
they act negligently
ii. Good Samaritan STATUTE = Health care
professionals are NOT liable for ORDINARY
negligence
1. (But ARE liable for GROSS negligence)
3. Omission: When defendant will be liable for failure to act because
a duty to act existed
a. Action required by statute
b. Custom, Contract, or Special Relationship
i. Parent/Child
ii. Employer/Employee
iii. Life Guard/Swimmer
iv. Property Owner/Guest
c. If one creates the peril/injury, there is a duty to render aid
i. Rescue Doctrine: Danger invites rescue
1. Defendant who places victim in perilous
position owes duty to and will be liable to
one coming to aid of victim who is injured
2. Extends to rescuers of rescuers
iv. Duty - Standard of Care
1. To act as a reasonably, prudent person under the circumstances
a. Objective Test = Reasonable Person
b. Under the Circumstances
i. Children - Act as a reasonable child of “like age,
intelligence, and experience”
1. UNLESS engaged in adult activities
ii. Emergencies - Act as a reasonable prudent person
would act in similar emergencies
v. Duty - Premises Liability
1. *MD Essay Test Favorite
2. Overview: Owners and occupiers (Defendant) owe a duty to
persons on their premises (Plaintiff) depending on:
a. WHERE plaintiff was injured - ON or OFF defendant’s land
b. WHO - Classify plaintiff as Invitee, Licensee, or Trespasser
c. WHAT caused the injury
i. Sometimes, there are minor differences in duties if
natural conditions (i.e. trees, ponds) or manmade
conditions/activities (i.e. trench, jungle gym,
fireworks show, lawn darts game) - apply common
sense
3. Where Injury Occurred OFF Defendant’s Land
a. i.e. Defendant’s tree fell on neighbor’s home or
defendant’s garage collapses on person walking on
adjacent public street
b. Caused by natural conditions  NO duty
i. Urban Areas Exception: Must exercise reasonable
care over natural conditions adjacent to public
areas (i.e. inspect trees by your road)
c. Caused by highly dangerous (death or serious injury),
manmade conditions or activities  Duty = Reasonable
care to warn/avoid injury
4. Where Injury Occurred ON Defendant’s Land
a. Classify the person on premises (plaintiff) as a:
i. Invitee (Public or Business)
1. Person invited on defendant’s land for
defendant’s economic benefit
2. i.e. Customer in store, citizen in public park,
person in church, plumber comes to fix your
home plumbing
ii. Licensee (Social Guest)
1. Person on defendant’s land WITH
permission
2. Includes fire fighters and police officers
iii. Trespasser
1. Person on defendant’s land WITHOUT
permission or knowledge
2. Known Trespasser
a. Defendant knows trespasser is on
land
b. i.e. Owner sees kids/person
trespassing
3. Anticipated Trespasser
a. Defendant reasonably expects
persons to trespass on land
b. i.e. Defendant knows people walk
across land every day at lunch time
on way to the mall
c. *MD = NO Anticipated Trespasser
Doctrine - treat like a regular
trespasser
PREMISES LIABILITY
TYPE OF PLAINTIFF:
Invitees
DUTY OWED:
1. Inspect premises
2. Reasonable care to make premises
reasonably safe
3. Warn of concealed dangers (If can’t
make reasonably safe)
Licensees
(NO duty to inspect)
1. Reasonable care to make premises
reasonably safe
2. Warn of KNOWN, concealed dangers
(Ones you can’t make reasonably
safe)
Trespassers (NOT Known)
1. Duty to not willfully or wantonly
entrap or injure
Known Trespasser
1. Reasonable care to avoid injury
2. Warn of highly dangerous, known,
concealed dangers
Anticipated Trespasser (*NOT MD)
1. Reasonable care to avoid injury
2. Warn of highly dangerous, known,
concealed dangers
NO DUTY to warn about “OPEN AND OBVIOUS” dangers
5. Related Concept - Attractive Nuisance Doctrine
a. Generally applies to kids UNDER 12 YEARS OLD
b. Elements:
i. Defendant has reason to know kids are likely to
trespass
ii. Defendant has reason to know condition involves
unreasonable risk of harm to kids
iii. Kids don’t discover or realize risk
iv. Burden of eliminating risk is small compared to the
risk
v. Defendant fails to use reasonable care to eliminate
risk
c. *MD = Attractive Nuisance Doctrine does NOT apply in
MD; child treated like a trespasser
i. BUT, if duty based on violation of statute, NOT
PREMISES LIABILITY, trespassing kid CAN recover
1. i.e. Kid drowns in pool with fence that does
not meet statutory safety requirements 
Kid can recover
2. If this is the case, analyze as regular
negligence
c. Breach
i. Breach Proved by Facts
1. Evidence of wrongful behavior is expressly in the facts
ii. Breach Proved by Violation of a Statute = Negligence Per Se
1. Proof of violation of a statute yields liability for negligence
2. Requirements:
a. Protective Statute
i. Statute designed to protect people from injury or
loss
b. Protected Persons
i. Plaintiff is within class of person’s statute is
designed to protect
c. Protected Injury
i. Plaintiff’s injury is of a type the statute is designed
to prevent
d. Proximate Cause
i. But for the statute violation, injury would not have
occurred
3. *MD = Violation of a statute is EVIDENCE OF NEGLIGENCE - NOT
Negligence Per Se (MD Essay Favorite)
iii. Breach Proved by Res Ipsa Loquitor
1. Generally
a. Allows fact finder to determine breach WITHOUT DIRECT
PROOF (facts in question) of breach
i. Inferred from the circumstances
b. Only gives rise to an inference of breach
i. Gets issue of negligence to the jury
ii. NO PRESUMPTION of negligence
2. Elements:
a. Event would NOT ordinarily occur in the absence of
negligence
b. Thing causing injury was under defendant’s exclusive
control
c. The injury was NOT caused by the plaintiff or anyone else
iv. Boulevard Rule
1. Driver ENTERING the road has a duty to defer to drivers ON the
road, and if there’s an accident, the ENTERTING driver usually has
breached that duty
a. i.e. Driver stops at the stop sign, but still pulls out and
causes an accident
d. Causation
i. Actual Cause
1. AKA - “But For” Rule; Cause-in-Fact
2. Defendant’s negligence actually caused the injury; injuries would
not have occurred “but for” the defendant’s negligence
ii. Proximate Cause
1. AKA - Legal Cause
2. Defendant’s negligence must be actual cause to be proximate
cause
3. Describes foreseeable connection between the act and the
plaintiff
4. There can be more than one proximate cause
iii. Intervening and Superseding Causes
1. Intervening Acts or Events
a. Acts by an independent 3rd party that occur AFTER the
original defendant’s tortious conduct and cause
ADDITIONAL injuries
b. i.e. D1’s negligent driving breaks P’s arm. During surgery to
repair P’s broken arm, D2’s negligent medical care causes
P to have a heart attack.
i. Question  Is D1 liable for injuries caused by D2?
2. INTERVERNING Cause
a. The 3rd party’s intervening act was reasonably foreseeable
from defendant’s tortious conduct  Defendant is liable
for ORIGINAL AND SUBSEQUENT injuries
i. i.e. D1’s negligent driving breaks P’s leg. While P
lays in the road, D2’s negligent driving hits P and
breaks P’s arm. D1 is still liable for the broken leg
AND broken arm.
ii. If intervening cause  D1 and D2 jointly and
severally liable for SUBSEQUENT injuries (i.e.
broken arm)
3. SUPERSEDING Cause
a. 3rd party’s intervening act was NOT reasonably
foreseeable from defendant’s tortious conduct 
Defendant is liable for ORIGINAL, but NOT SUBSEQUENT
injuries
i. i.e. D1’s negligent driving breaks P’s leg. While
waiting for help, D2 negligently throws bottle from
the car striking P, giving P a concussion. D1 is still
liable for the broken leg, but NOT the concussion.
iv. Dramshop Rule
1. Tavern owner/social host who serves more alcohol to an
OBVIOUSLY intoxicated person is also liable of the intoxicated
person then injures a 3rd person
a. *MD = Does NOT recognize Dramshop Rule, BUT, adults
who allow minors to drink on property CAN be held liable
e. Damages
i. “Thin Skull” Doctrine
1. Once you establish that the defendant is liable for a tort, when
determining damages, “you take the plaintiff as she comes”
ii. Compensatory Damages
1. To compensate the plaintiff for injuries
2. Economic Damages
a. Can identify specific amount of money  Medical
expenses, lost wages, loss of service, etc.
3. Non-Economic Damages
a. Pain and suffering, inconvenience, disfigurement,
impairment
b. Loss of consortium - Action brought by both spouses only
iii. Punitive Damages
1. AKA - Exemplary Damages
2. Purpose is to punish the defendant
3. Generally requires malice
iv. Damage “Caps”
1. *MD = Statutory limit on non-economic damages in negligence
cases
a. Does NOT apply to intentional tort cases, punitive
damages, or economic damages
2. Statutory limit (CAP) automatically rises $15K per year
3. *ON ESSAY  Will not need to do any calculations; merely
mention that MD HAS a damage cap
f. Defenses to Negligence
i. Contributory or Comparative Negligence
1. CONTRIBUTORY Negligence - MD
a. *MD Essay Favorite
b. Plaintiff’s negligence proximately causes the injuries - total
bar to recovery, even if plaintiff’s negligence was only
slight
i. First, plaintiff proves defendant’s negligence; then
defendant proves plaintiff’s negligence
c. Affirmative Defense  Defendant must plead and prove
contributory negligence
d. Contributory Negligence is NOT a defense to
INTENTIONAL TORTS or STRICT LIABILITY
i. *MD = There is NO seatbelt defense in MD
1. Defense that if plaintiff has been wearing a
seatbelt, plaintiff would not have been
injured or would’ve been injured less
severely
e. Last Clear Chance = Answer to Contrib.
i. Plaintiff has shown that defendant was negligent
ii. Defendant has shown that plaintiff was
contributorily negligent
iii. Plaintiff shows that defendant had the last clear
chance to avoid the injuries made possible my
plaintiff’s contributory negligence (like a new act of
negligence by defendant)
1. Defendant was aware of the dangerous
situation
2. Plaintiff was not aware of the danger - or
was unable to do anything about it
3. Defendant could have avoided the injuries
iv. Bottom Line  Even though plaintiff was
contributorily negligent, defendant is still liable
because defendant has the last clear chance to
avoid the injury
2. COMPARATIVE Negligence
a. MOST jurisdictions
b. Generally
i. Compare plaintiff and defendant’s negligence
ii. Plaintiff recovers damages minus the % caused by
plaintiff’s negligence
c. PURE Comparative Negligence
i. Plaintiff can recover even if 99% negligent
1. Plaintiff would get 1% of total damages
ii. *This is the controlling rule on the MBE, UNLESS
question states otherwise
d. MODIFIED Comparative Negligence
i. Plaintiff is barred from any recovery if his/her
negligence was GREATER than 50%
ii. Assumption of Risk
1. *MD Essay Favorite
2. Complete bar to recovery to negligence and battery, but NOT
OTHER INTENTIONAL TORTS
3. Plaintiff knows of and understands risk
a. Subjective Standard  What plaintiff actually knew and
understood, NOT what a reasonable person would have
known and understood
4. Voluntarily proceeds
iii. Comparing Contributory/Comparative Negligence with Assumption of
Risk
1. Last Clear Chance will overcome Contrib.
2. Last Clear Chance will NOT overcome Assumption of Risk
3. Contrib. only applies when plaintiff acts unreasonably
4. Assumption of Risk applies even if plaintiff acts reasonably
5. If plaintiff is injured by an “open and obvious” dangerous
condition, usually contributory/comparative negligence or
assumption of risk, or both
iv. Immunities
1. Parent/Child Immunity
a. MBE = Abolished, especially if child is emancipated
b. *MD = Still recognizes parent/child immunity, UNLESS
i. Emancipation or cruel and inhumane treatment by
parent (really bad, more than simple child abuse),
AND
ii. Motor vehicle torts
1. i.e. Child can sue parent for injuries from
parents’ driving, up to parents’ insurance
limits
v. Statute of Limitations
1. 3 YEARS for most torts
a. From the date plaintiff knew or should have known of the
negligent act that caused the injury
2. 1 YEAR for assault and defamation
g. Liability Involving Acts of Others
i. Vicarious Liability - INDIRECT Liability Involving Acts of Others
1. Generally
a. Business partners are generally liable for each other’s
conduct involving the partnership
b. Respondeat Superior
i. “The master is liable for the torts of the servant
(but usually NOT those of an independent
contractor) committed within the scope of
employment”
1. Generally, ER/EE relationship
2. Respondeat Superior
a. Master/Servant (ER/EE) Relationship
i. Right of Control: Test is master’s/employer’s right
of control over the means and manner of servant’s
conduct - whether or not that right is exercised
1. Factors to determine if employee is a
servant (S) or independent contractor (IC):
a. Contract Language - If it says IC,
more likely IC
b. Skill Required - More skill required
in occupation, more likely IC
c. Tools Provided - If EE provides own
tools, more likely IC
d. Length of Employment - Shorter
term employment by ER, more likely
IC
e. Method of Payment - Paid by job,
more likely IC
2. Servant: ER has right of control over EE’s
work, and therefore, may be vicariously
liable for EE’s torts
3. Independent Contractor: ER does NOT have
sufficient right of control over IC-EE’s work,
and therefore, is NOT vicariously liable for
IC-EE’s torts
a. Exception: Non-Delegable Duties 
Master IS liable for IC’s tortious
performance of Master’s nondelegable duties - Examples:
i. City’s duty to keep the
streets in a reasonable
repair.
ii. Landlord’s duty to maintain
common areas.
iii. Owner’s duty to keep the
premises reasonably safe.
iv. ER’s duty when carrying out
inherently dangerous
activities.
b. Exception: Apparent Authority 
Master may be liable for IC’s
tortious conduct if IC has apparent
authority
i. i.e. Hospital’s emergency
room services contracted out
to independent group of
doctors, but emergency
room sign has hospital name,
all staff wear hospital name
tags, etc.
ii. Borrowed Servant Rule
1. One ER borrows an EE from another ER
2. Borrowing ER, (and maybe regular ER also)
may be liable for EE’s torts
b. Scope of Employment
i. Servant’s tortious conduct must have been within
the scope of the servant’s employment
ii. Factors to consider to determine if servant’s tort
was within the scope of the servant’s employment:
1. Was tortious conduct in furtherance of the
master’s business interests?
2. Did tortious conduct occur during work
hours, on work premises, or during doing a
work activity?
a. Commute to work is NOT within the
scope of employment
b. Frolic: Abandonment of, or a
substantial deviation from, the
employer’s purpose; NOT WITHIN
SCOPE OF EMPLOYMENT; NO
vicarious liability
c. Detour: A slight deviation from the
ER’s purpose; STILL WITHIN SCOPE
OF EMPLOYMENT; vicarious liability
3. Intentional Torts?  If a servant’s
intentional tort is within the scope of her
employment (i.e. bouncer at a bar - but,
rare), the master IS vicariously liable
iii. If servant’s conduct was NOT within the scope of
servant’s employment, master is NOT vicariously
liable
c. If Respondeat Superior applies  ER and EE are jointly
and severally liable
3. No Vicarious Liability
a. No vicarious liability of parent for torts of the child OR
spouse for the torts of the other spouse, merely because
of the relationship
b. Permitted Automobiles Drivers
i. i.e. Lend car to friend who drives negligently and
injures another
ii. No vicarious liability for owner for driver’s torts,
UNLESS agent of owner or owner is a passenger
ii. Direct Liability Involving Acts of Others
1. Negligent Hiring, Negligent Entrustment, Negligent Supervision
a. ER knows something about EE so that ER should NOT have
hired, entrusted, left unsupervised.
i. i.e. Lend car to known bad driver who crashes; ER
hires truck driver with bad driving record without
checking driving record
h. Survival and Wrongful Death Actions
i. Survival Action
1. Brought by decedent’s estate for damages suffered by the
decedent AFTER tort, but BEFORE he died
ii. Wrongful Death Action
1. Statutory cause of action brought by certain family members
(parents, spouse, child) for their OWN damages caused by the
death of the decedent
a. No common law marriages
b. Can only be brought by NATURAL parent or child
iii. For either, the cause of action must be based on some specific tort (i.e. a
wrongful death action based on negligence, battery, etc.)
III.
Strict Liability (Exists only in 3 situations)
a. Owners of Animals
i. Wild Animals/Livestock
1. Strict liability when livestock or wild animal does damage or
causes injury to others
ii. Domesticated Animals
1. “One Bite Rule”
a. Must show prior knowledge of animal’s vicious propensity;
THEN, strict liability
b. Ultrahazardous or Abnormally Dangerous Activities
i. Activity poses high risk of harm to persons or property,
ii. Likelihood of great harm if risk occurs, AND
iii. Can’t eliminate risk, even with reasonable care
iv. i.e. Storing dynamite on your property
c. Strict Products Liability
i. (SEE BELOW)
IV.
Products Liability
a. Generally
i. Liability for injury/damages caused by defective products
ii. Focus on defects in:
1. Manufacture
2. Design
3. Failure to warn
b. Strict Products Liability
i. Manufacturer or supplier IS liable if product is sold in
1. Defective, AND
2. Unreasonably dangerous condition, AND
3. Causes harm
ii. Product MUST be BOTH defective AND unreasonably dangerous when
sold
iii. Still must prove CAUSATION
1. Defect caused harm
iv. Example: Soda bottle has shards of glass in it. Plaintiff buys it, drinks it,
and is injured.
c. Negligence
i. Failure to exercise reasonable care in creating product sold
1. Product need NOT be defective or unreasonably dangerous (as in
Strict Products Liability)
ii. 3 theories (may overlap):
1. Negligent Manufacture
a. i.e. Hand tool manufactured using low quality metal that
breaks under foreseeable pressure
2. Negligent Design
a. i.e. Care manufactured as designed, but design makes it
too easy to catch fire in an accident
3. Negligent Failure to Warn
a. i.e. Spray paint can that will explode if left in sun, but no
warning to that effect on the can
d. Implied Warranty (UCC Title 2)
i. Breach of contract warranty that causes injury
1. Seeking more than contract damages
a. Breach of Implied Warranty of Merchantability, or
b. Implied Warranty of Fitness for a Particular Purpose
ii. Example: Buyer buys TV that blows up and injures Buyer
1. Buyer can sue Seller for contract damages to get money back, but
can also get tort damages for injuries and maybe even punitive
damages
V.
Intentional Torts
a. Assault
i. Intent to instill
1. Transferred intent applies
ii. Apprehension of
1. Not necessarily fear
iii. Imminent/immediate
1. Not conditional or a future threat
iv. Harmful or offensive (unauthorized) touching
v. Causing Plaintiff’s apprehension
1. Plaintiff’s apprehension must be actual (subjective), and
a. Plaintiff must be aware of threat
b. Doesn’t have to be actual injury
2. Defendant must have present apparent ability to carry out the
threat, making Plaintiff’s apprehension reasonable (objective)
b. Battery
i. Intentional, unauthorized touching
1. No hostile intent or injury required
2. Transferred intent applies
3. Touching beyond social norms
4. Plaintiff does NOT have to be aware of the contact
c. Defenses to Assault and Battery
i. Consent
1. Express - “Go ahead and hit me!”
2. Implied - Playing football
ii. Self Defense Privilege
1. Like self-defense in criminal law
2. Must reasonably and actually believe that self-defense is
necessary AND use of no more force than necessary
a. Duty to Retreat and Castle Doctrine apply in tort (even if
not in MBE criminal law)
d. False Imprisonment
i. Freedom from confinement or restraint
ii. Elements:
1. Intent
a. Transferred intent applies
2. Confinement, or restraint of moment without escape route
a. No minimum period of time required
3. Without Plaintiff’s consent
a. Or legal justification
4. Plaintiff is confined and is aware of it
iii. Methods of Confinement
1. Physical barriers
2. Threat of or use of physical force against Plaintiff, Plaintiff’s
immediate family, or Plaintiff’s property
3. Wrongly asserted legal authority
iv. Defense: Merchant’s Privilege (aka Shopkeeper’s Rule)
1. Reasonable basis for suspecting a theft
2. Restraint is for a reasonable period and in reasonable manner
3. Purpose of the restraint is to recover the goods
e. INTENTIONAL Infliction of Emotional Distress
i. Intent or recklessness that is extreme and outrageous and causes severe
emotional injury
ii. Beyond bounds of decency
1. Sufficient even if extreme and outrageous only in context of
Plaintiff’s unique susceptibilities
iii. Severe emotional distress
1. No physical manifestation required for IIED
2. *MD = Requires virtual “emotional crippling” to recover
f. NEGLIGENT Infliction of Emotional Distress
i. Elements: (For MBE)
1. Negligent extreme and outrageous conduct that causes severe
emotional injury
2. Proof of severe emotional injury - IF no physical injury or physical
impact (i.e. Plaintiff has no bruises, broken bones or Plaintiff not
actually touched by Defendant’s negligently driven car)
a. Plaintiff must be in “zone of danger” to recover - threat of
physical impact
b. Physical manifestation required (i.e. vomiting, insomnia,
etc.)
ii. *MD = Not recognized as a separate cause of action
1. Such damages may be recovered in a negligence action
g. Conversion
i. “Substantial interference with the possession and use of the personal
property of another” - like the crime of theft
ii. Elements:
1. Defendant has exercised dominion
2. Over the Plaintiff’s property
3. Without Plaintiff’s consent
a. Even if in good faith or by honest mistake
4. Damages
a. Fair market value of item converted
h. Nuisance
i. Substantial and unreasonable interference with use and enjoyment of
real property of another
1. i.e. noise, odors, lights
ii. Private Nuisance
1. Action brought by a PRIVATE PERSON whose use of their own
land is interfered with
a. Usually neighbors dispute
2. “Coming to the Nuisance”
a. Neighbor moves next to already existing “nuisance”
b. Neighbor can still complain and has cause of action
iii. Public Nuisance
1. Action brought by the GOVERNMENT, NOT private person, where
gov’t land is being interfered with - causing health or safety
problems
a. Exception: If private owner’s injury is different from
public, a private action is permitted
iv. Nuisance Remedy
1. Court balances Defendant’s use and harm caused v. cost and
ability to abate
a. Balancing factors:
i. Locale (residential/industrial)
ii. Nature and extent of harm
iii. Time of day of activity
iv. Utility of activity
i.
2. Remedies:
a. Abatement of nuisance
b. Sometimes damages, including diminution in value of land,
if any
Defamation
i. Generally
1. Protects interest in reputation
2. Plaintiff must be alive, BUT can be a corporation
3. Libel for Letters
a. Permanent recorded
4. Slander for Spoken to individuals
5. Publication of facts about Plaintiff which are false and
defamatory and cause damage to the Plaintiff’s reputation
ii. Elements
1. Defendant publishes a communication
a. Communication to a 3rd person (even just one)
i. Must be understood by 3rd person(s)
b. Intentionally or negligently published (communicated)
c. Includes re-publication
i. i.e. Newspaper prints text of speech already given
that is in fact defamatory
2. Which is expressed as a fact
a. Not opinion, hyperbole, or satire
3. About (of and concerning) the Plaintiff
a. Refers to Plaintiff
b. Can refer to a member of a small group
4. Which is false
a. Plaintiff must prove actual falsity of the statement
b. Truth of the statement is a defense
5. And defamatory
a. Defamatory = Harms the person’s reputation so as to
lower the person in the eyes of the community
b. Must be a “considerable and respectable segment” of the
community
i. Not just thought less of by fellow convicts
6. And proximately causes harm to Plaintiff’s reputation
a. Defamation Per Quod (Either libel or slander)
i. NOT defamatory on its face
1. BUT becomes defamatory when combined
with other information
ii. Must prove “special” damages, meaning that
damages are not presumed
1. Plaintiff must offer proof of economic
damages
b. Defamation Per Se (Either libel or slander)
i. Defamatory on its face
1. Criminal conduct
2. Conduct detrimental to Plaintiff’s business
3. Serious sexual misconduct
4. Loathsome disease
5. *MD = Impugning a woman’s chastity
ii. If defamation per se, does NOT require proof of
“special damages” (economic damages)
iii. Private v. Public Figures
1. Private Figure
a. Private Plaintiff need only show that defamatory
statement was negligently made
i. Negligently made = Didn’t act reasonably to
determine truth of the statement
2. Public Figure
a. Public Figure = A public official with substantial
responsibility for government affairs or other person
whose activities stimulate public interest
i. A person “in the public eye”
b. Plaintiff who is a public figure must show that Defendant
made the defamatory statement with malice
i. Malice = Defendant knew the statement to be false
or had a reckless disregard for its truth or falsity
j. Intentional Interference with Contractual Relations
i. Elements:
1. An existing contract;
2. Defendant was not a party to that contract
3. Knowledge of that contract on the part of the Defendant
4. Intentional interference with that contract, AND
5. Breach and damages result
k. Malicious Interference with Economic Relations
i. Defendant acts intentionally
ii. Defendant’s intent is to damage the Plaintiff’s business
1. No existing contract required
iii. The Defendant has an unlawful or improper purpose
1. Beyond normal, fair competition
iv. Causes actual damages
VI.
Invasion of Privacy/Constitutional Torts
a. Intrusion on Seclusion
i. Intentionally intruding, physically or otherwise, upon the solitude,
seclusion, or privacy of another
ii. No publication required
iii. Like a trespass or surveillance
b. Appropriation of Likeness
i. Commercial or non-commercial use of the name or likeness of another
without consent
c. Publication of Private Facts
i. Publication of private facts about a person, even if facts are true, that are
objectively highly offense and not of legitimate concern to the public
1. Facts not in public record and not newsworthy
d. False Light
i. Publication of facts, even true facts, that are highly offensive and
unreasonably place another in a false light, with knowledge of the falsity
or reckless disregard for the truth of the light in which the other would be
placed
1. Similar to defamation, BUT facts need not be false or
defamatory
VII.
Apportionment Among Multiple Tortfeasors
a. Joint and Several Liability
i. Each tortfeasor is liable for the entire damages award, BUT the Plaintiff
can recover only once
ii. Applies to joint tortfeasors and to vicarious liability/Respondeat superior
iii. *Controlling rule on MBE - unless told otherwise
b. Contribution
i. Right of one tortfeasor who paid damages to collect fair share from other
tortfeasors
1. Based on number of tortfeasors, NOT % of fault
a. Although Defendants may sue each other to claim a
different %
c. Indemnification
i. Right of one tortfeasor to receive full reimbursement for damages from
other tortfeasors
1. Generally involves a contractual agreement to indemnify