Very Basic Torts Outline

Intentional Torts
(1) Intent to act in a certain way.
(2) The substantial certainty doctrine is the assumption of intent even if the actor did not intend
the result, he knew with substantial certainty the effect would occur as a result of his action.
(3) The unintentional results of an act (such as a pedestrian death resulting from the actions of a
negligent driver).
Imminent threat of physical contact + imminent apprehension
Assault is merely the act of threatening a battery, or of placing another in fear or apprehension of
an impending and immediate battery.
Words, without an act, cannot constitute an assault. For example, no assault has occurred where
a person waves his arms at another and shouts, "I'm going to shoot you!" where no gun is visible
or apparent. However, if the threatening words are accompanied by some action that indicates
the perpetrator has the ability to carry out a threat, an assault has occurred.
Physical contact (unwanted or offensive)
Intent (or knowledge that harm could occur)
For a tortuous battery to occur, the requisite intent is merely to touch or make contact without
consent. It need not be an intention to do wrong and the wrongdoer need not intend to cause the
particular harm that occurs. Non-consensual touching is all that is required.
Transferred Intent
Transferred intent is used when a defendant intends to harm one victim, but then unintentionally
harms a second victim instead. In this case, the defendant's intent transfers from the intended
victim to the actual victim.
False imprisonment is a restraint of a person in a bounded area (if there is a reasonable means
of escape which the plaintiff is aware of, then the element of bounded area is not met) without
justification or consent.
(1) Willful detention in a bounded area; (2) without consent; and (3) without authority of
lawful arrest.
-Exceptions to false imprisonment
Under United States law, the police have the right to detain someone if they have probable cause
to believe a crime has been committed, and that the person is so involved, or if the officer has
reasonable suspicion, based on specific and articulable facts and inferences, that the person has
been, is, or is about to be, engaged in a criminal activity.
Many jurisdictions of the United States recognize the common law shopkeeper's privilege, under
which a person is allowed to detain a suspected shoplifter on store property for a reasonable
period of time, with cause to believe that the person detained in fact committed, or attempted to
commit theft of store property. The shopkeeper is allowed to ask the suspected individual to
demonstrate that the suspect has not been shoplifting. The purpose of the shopkeeper's privilege
is to find out if the individual is shoplifting and can the item be reclaimed. The shopkeeper's
privilege, although recognized in most jurisdictions, is not as broad a privilege as that of a police
officer's, and therefore one must pay special attention to the temporal element – that is, the
shopkeeper may only detain the suspected criminal for a relatively short period of time. This is
similar to a general right in many jurisdictions of citizen's arrest of suspected criminals by the
public in limited circumstances.
This privilege has been justified by the very practical need for some degree of protection for
shopkeepers in their dealings with suspected shoplifters. Absent such privilege, a shopkeeper
would be faced with the dilemma of either allowing suspects to leave without challenge or acting
upon his suspicion and risk making a false arrest.
In order for a customer to be properly detained, the shopkeeper must:
Conduct the investigation on the store premises, or immediately near the premises.
Have reasonable cause to believe the person detained was shoplifting.
Use reasonable (non-excessive) force to detain the suspected individual.
Not prolong the detention longer than a reasonable amount of time needed to gather
all the facts.
Intentional infliction of emotional distress is a common law tort that allows individuals to
recover for severe emotional distress caused by another individual who intentionally or
recklessly inflicted the emotional distress by behaving in a way that was "extreme and
Defendant acted intentionally or recklessly; and
Defendant’s conduct was extreme and outrageous; and
Defendant’s act is the cause of the distress; and
Plaintiff suffers severe emotional distress as a result of defendant’s conduct.
-Typically an IIED is very hard to prove in court
Trespass to Land
-Any unauthorized entry onto someone else’s property. Damage done to the property is
-In most jurisdictions, if a person were to accidentally enter onto private property, there would be
no trespass, because the person did not intend any violation.
Trespass to chattels is a tort whereby the infringing party has intentionally interfered with
another person's lawful possession of a chattel (movable personal property). The interference can
be any physical contact with the chattel in a quantifiable way, or any dispossession of the chattel
(whether by taking it, destroying it, or barring the owner's access to it).
Elements of trespass to chattels:
(a) Defendant dispossesses the other of the chattel, or
(b) The chattel is impaired as to its condition, quality, or value, or
(c) The possessor is deprived of the use of the chattel for a substantial time, or
(d) Harm is caused to some person or thing in which the possessor has a legally protected
The trespass to chattels cause of action, frequently asserted in recent years against Internet
advertisers and email spammers, is often included in complaints against spyware companies.
These electronic messaging cases, and their progeny, which have cropped up over the last
decade, will typically turn on the situations described in (b) or (d), and, as detailed below, the
question of harm caused is a big issue.
In sum, the basic elements of a claim of trespass to chattels are: 1) the lack of the plaintiff's
consent to the trespass, 2) interference or intermeddling with possessory interest, and 3) the
intentionality of the defendant's actions. Actual damage is not necessarily a required element of a
trespass to chattels claim.
A conversion is a voluntary act by one person inconsistent with the ownership rights of another.
The elements of a conversion cause of action are:
The plaintiff has clear legal ownership or right to possession of the property at the
time of the conversion;
The defendant's conversion by a wrongful act or disposition of plaintiff's property
rights; there are damages resulting from the conversion.
Examples are seen in cases where trees are cut down and the lumber hauled from the land by
someone not having clear ownership; or removing furniture belonging to another from a
cohabited dwelling, placing it in storage and not telling the owner of the whereabouts.
Traditionally, a conversion occurs when some chattel is lost, then found by another who
appropriates it to his own use without legal authority to do so. It has also applied in cases where
chattels were bailed for safe keeping, then misused or misappropriated by a third party.
An action for conversion does not rest on knowledge or intent of the defendant. The act
constituting "conversion" must be an intentional act, but does not require wrongful intent, and is
not excused by care, good faith, or lack of knowledge. Fraudulent intent is not an element of
conversion. The defendant is answerable for the conversion, no matter how good his intentions
were, or how careful he has been, or how apparently well-founded was his belief that his tortious
act was right. The existence of probable cause does not preclude liability. A person may be liable
for conversion even though he was reasonably mistaken in thinking the facts to be such as would
give him a legal right to the goods.
Defenses to Intentional Torts
Consent (not applicable to children or mentally ill plaintiffs)
-Is invalid if it is coerced or forced.
-Fraud or mistake also invalidates consent.
-Express (words) or implied consent?
Self Defense (deadly forced can never be used to protect property alone)
-Defense of property is separate from self-defense. (Katko v. Briney)
-If you’re in “hot pursuit” you can use reasonable force to retake your property.
Necessity (applies to property torts only)
-Public necessity (unlimited privilege)
-Private necessity (qualified in the sense that you do need to pay for the damages that you
In the common law of torts, res ipsa loquitur (Latin for "the thing speaks for itself") is a doctrine
that infers negligence from the very nature of an accident or injury in the absence of direct
evidence on how any defendant behaved. Although modern formulations differ by jurisdiction,
common law originally stated that the accident must satisfy the necessary elements of
negligence: duty, breach, causation, and damages. In res ipsa loquitur, the elements of duty of
care, breach and causation are inferred from an injury that does not ordinarily occur without
Duty: Who do you owe a duty of care (in or around the area you act), and how much care are
you liable for (the amount of care taken by a reasonably prudent person under the same or
similar circumstances)?
Special duty standards: children (unless the child is engaged in an adult activity),
professional malpractice (informed consent), owners and occupiers of land (undiscovered
trespasser will always lose, but you do owe a reasonable duty of care to discovered
trespassers to artificial, dangerous, concealed, highly dangerous that you are aware of aka
man made death traps).
Trespassers: you only have a duty to protect discovered trespassers from man-made death
traps on your property
Negligence Per Se: plaintiff has to show that they are among the class of persons which
the statue is trying to protect, and that the statute was trying to protect against the type of
risk or harm that has occurred in their case (used to set the duty standard of negligence in
the absence of res ipsa loquitur).
-If a plaintiff fails to borrow a statute they can still proceed with their case for negligence
by using the reasonable prudent standard.
-If compliance with the statute would be more dangerous than violating the
statute, than the violation will not be treated as negligence per se.
-Or if compliance with the statute is truly impossible.
Affirmative Duties to Act
-If the defendant is the one who put the plaintiff in danger then the defendant has an affirmative
duty to act.
-A close family relationship requires a duty to rescue
-Common carrier or innkeeper relationship
-Relationship between host and guest
-Defendant may owe a duty of care to stop a third party from injuring the plaintiff, but the
defendant must have the actual ability and authority to control this third party
Nonfeasance is a term used to describe inaction that allows or results in harm to a person or to
property. An act of nonfeasance can result in liability if (1) the actor owed a duty of care toward
the injured person, (2) the actor failed to act on that duty, and (3) the failure to act resulted in
Generally, a civil defendant will be liable for misfeasance if the defendant owed a duty of care
toward the plaintiff, the defendant breached that duty of care by improperly performing a legal
act, and the improper performance resulted in harm to the plaintiff.
For example, assume that a janitor is cleaning a restroom in a restaurant. If he leaves the floor
wet, he or his employer could be liable for any injuries resulting from the wet floor. This is
because the janitor owed a duty of care toward users of the restroom, and he breached that duty
by leaving the floor wet.
In theory, misfeasance is distinct from Nonfeasance. Nonfeasance is a term that describes a
failure to act that results in harm to another party. Misfeasance, by contrast, describes some
affirmative act that, though legal, causes harm. In practice, the distinction is confusing and
uninstructive. Courts often have difficulty determining whether harm resulted from a failure to
act or from an act that was improperly performed.
To illustrate, consider the example of the wet bathroom floor. One court could call a resulting
injury the product of misfeasance by focusing on the wetness of the floor. The washing of the
floor was legal, but the act of leaving the floor wet was improper. Another court could call a
resulting injury the product of nonfeasance by focusing on the janitor's failure to post a warning
-One line of cases has suggested that manufacturers owe a duty of care to ultimate purchasers
only when the product is inherently dangerous. Other cases have suggested a duty of care is
owed to foreseeable users if the product is likely to cause injury if negligently made.
-In order for a duty of care to arise in relation to ultimate purchasers, two criteria are necessary.
First, the nature of the product must be such that it is likely to place life and limb in danger if
negligently made. This knowledge of danger must be probable, not merely possible. Second,
there must be knowledge that in the usual course of events, the danger will be shared by people
other than the buyer. This may be inferred from the nature of the transaction and the proximity or
remoteness of the relation.
A plaintiff may recover damages for emotional distress caused by observing the negligently
inflicted injury of a third person only if: (1) the plaintiff is closely related to the victim; (2) the
plaintiff is present at the scene at the time the injury occurs and is then aware of the injury being
caused to the victim; (3) as a result suffers serious emotional distress beyond which would be
expected of a disinterested witness.
Duty to Third Parties based on special relationship with person posing risks
Defenses: minority rule Contributory Negligence (barred from recovery), majority rule
Comparative Negligence, Assumption of Risk (express or implied)
Res ipsa loquitur is used by desperate plaintiffs who don’t know exactly what happened. Gets
the plaintiff a jury, and makes the case a jury decision.
Burden of Preponderance
- It is also the burden of proof of which the defendant must prove affirmative defenses or
mitigating circumstances in civil or criminal court. In civil court, aggravating circumstances also
only have to be proven by a preponderance of the evidence, as opposed to beyond reasonable
doubt (as they do in criminal court).
- The standard is met if the proposition is more likely to be true than not true. The standard is
satisfied if there is greater than fifty percent chance that the proposition is true.
Direct Evidence: based on personal knowledge or observation, if true proves a fact without
inference of presumption
Circumstantial Evidence: based on some collateral fact, from which the existence or nonexistence of some fact in question may be inferred as a probable consequence (res ispa loquitur)
A rule nisi in a civil case is a form of contempt of court in which a party is required to show
cause as to why he does not have to comply with past rulings ordered by a judge.
There are two types of causation in the law: cause-in-fact, and proximate (or legal) cause.
Cause-in-fact is determined by the "but for" test: But for the action, the result would not have
happened. For example, but for running the red light, the collision would not have occurred. For
an act to cause a harm, both tests must be met; proximate cause is a legal limitation on cause-infact. (Proximate cause limits liability)
Causation: Cause in fact (“but for” cause), and proximate cause: you are only liable for those
harms that are within the risk of your own activity.
Intervening causes: subsequent medical malpractice, negligent rescue, reaction forces,
subsequent disease and accidents. (All events are considered foreseeable)
-Intervening causes do not limit the liability of the original tortfeasor
Superseding causes remove liability because they are not foreseeable.
If “but for” doesn’t work use the substantial factor test (concurrent causes) is applied.
If one’s injury is caused by the combined negligence of multiple actors, liability will be
determined according to one of several tests.
Concurrent Causes
1. Substantial Factor Test In cases where the negligent actions of each tortfeasor alone
would have caused the entire injury by itself and the harm is indivisible such that
damages cannot be apportioned among the tortfeasors, each is liable for causing the entire
harm. To be liable, a defendant’s negligence must have played a substantial part in
causing the harm.
2. Multiple Negligence In cases where the negligent actions of each defendant would not
have caused the injury alone, each is liable for the damage each defendant actually
3. Alternative Causes: If it cannot be determined which of the two negligent actors caused
the injury, both are liable unless one can prove his innocence.
4. Enterprise Liability Theory: Each member of an enterprise is liable for damages caused
by the enterprise as a whole when there has been close cooperation among the different
members and damages cannot be apportioned.
If multiple acts occur, each of which alone would have been a factual cause of the physical harm
at the same time in the absence of the other acts, each actor is liable for that harm.
Past and future medical expenses, past and future lost income, plaintiff’s pain and suffering
(obligated to mitigate such damages).
Contributory Negligence: failure of a plaintiff to use the relevant degree of care for their own
safety. If the plaintiff is found to be somewhat negligent in their own injury then they recover
nothing. (Not applicable in most states)
-Last Clear Chance allows the plaintiff to recover despite negligence if the defendant had
the last clear chance to avoid the accident but failed to do so
Assumption of Risk (Express and Implied)
Comparative Negligence
-Pure: plaintiff will always recover something even if they are the most at fault
-Modified or partial: plaintiff’s recovery is proportioned to a maximum of 50%
Dignitary and Economic Harms
(1) A false and defamatory communication concerning another, (2) or an unprivileged
publication to a third party in a way that that party understands it (either intentional or negligent),
(3) proof of damages, and in some cases a plaintiff can present special proof (monetary loss tied
to the defamation) of damages.
Libel (publication) and Slander (spoken)
Slander per se: Imputations of a major crime, contraction of a loathsome disease, injures
professional reputation, or implies serious sexual misconduct.
Defamatory communication is any communication that harms the reputation of another person or
tends to lower his respect or confidence in the community. (Belli v. Orlando)
-Nominal (in name only), General (harm to reputation), special (economic or pecuniary), other
Defenses to Defamation
1st Amendment will generally provide protection for harmful statements made in an issue of
public concern. (Plaintiff must prove that the defendant was in fault as to their knowledge of the
truth of the defamatory statement aka actual malice)
-Is the plaintiff a public or private person (must prove falsity and negligence)?
-In 1st Amendment cases a jury is not allowed to presume damages under any
circumstances unless the plaintiff proves actual malice.
Truth (Affirmative Defense)
Qualified Privilege
-Public Debate (less common)
-To serve the interests of the person receiving the information.
Absolute privilege exists in the following forms:
(1) Legislative Privilege
(2) Judicial Privilege
(3) Executive Privilege
(4) Domestic Privilege (communications between spouses)
-First, the legislative privilege states that all federal and state legislative officials have absolute
privilege to utter defamatory statements while on the floor of the legislatures or in committee
sessions. Further, there is no requirement of relevancy here. That is to say, defamatory
statements made on the floor of the legislature or in a committee session are privileged even if
they are completely irrelevant to the proceedings being conducted. See Tenney v. Brandhove,
341 U.S. 367 (1951).
-Second, the judicial privilege gives any participant in a judicial proceeding the absolute
privilege to utter defamatory statements in the course of the proceedings so long as the
statements have some relevancy to the proceedings. See Irwin v. Ashurst, 74 P.2d 1127 (Or.
1938). For the purposes of this privilege, judicial proceedings are considered to have started
when the initial complaint is filed. However, the privilege is not limited to statements made at
the trial itself. Statements made in any pre-trial event or post trial appeal are privileged as well.
Please also note that defamatory statements that have no connection or relevance to the judicial
proceedings are not protected. Participants in judicial proceedings include judges, attorneys,
witnesses, jurors and others involved in the action. Please note that a stenographer has the
absolute privilege to republish any defamatory statements.
-Third, the executive privilege affords an absolute privilege to high ranking executive officers of
state and federal governments when acting within the scope of their discretionary duties. Please
note that as with the judicial privilege, the executive privilege also requires that the statements be
relevant to the proceedings. High ranking executives include presidents, governors, cabinet
members and people in similar positions. See Kilgore v. Younger, 30 Cal.3d 770 (1982). It is an
open question as to whether or not their advisors are also afforded the privilege.
-Finally, the domestic privilege affords a spouse the absolute privilege to make defamatory
statements about a third person to their spouse.
Conditional Privilege
-Certain defendants are afforded a conditional privilege which exists when a speaker does not
qualify for an absolute privilege but needs protection from a defamation suit that might otherwise
inhibit him from speaking.
-In order for defendants to qualify for a conditional privilege, the following three elements must
be in place.
(1) The defendant must reasonably believe that an important interest is threatened. The
threatened interest can be his own, the interest of the person he is publishing to, or any
other third person.
(2) The defamatory statement must be relevant to the interest that the defendant is trying
to protect. The relationship can be a business relationship as well as a familial one.
(3)The defendant must publish the defamatory statement to a third person who the
defendant thinks will be able to protect the interest that the defendant is trying to protect.
-Conditional privileges apply to the following types of communications:
-A statement that is made for the protection of the publisher’s interest
-A statement that is made for the protection of the interests of a third person
-A statement that is made for the protection of common interest
-A statement that is made to ensure the wellbeing of a family member
-A statement that is made where the person making the communication believes that the
public interest requires communication of the statement to a public officer or other
-A statement that is made by an inferior state officer who is not entitled to an absolute
Invasion of Privacy
Restatement 652A
1. Unreasonable intrusion upon seclusion or solitude, or into private affairs.
2. Public disclosure of embarrassing private facts. (Tabloids are essentially immune)
3. Publicity which places a person in a false light in the public eye.
4. Appropriation of name or likeness. (Exception is newsworthy use)
These include the Fourth Amendment right to be free of unwarranted search or seizure, the First
Amendment right to free assembly, and the Fourteenth Amendment due process right, recognized
by the Supreme Court as protecting a general right to privacy within family, marriage,
motherhood, procreation, and child rearing.
Defenses to Privacy
The absolute privileges of defamation also apply to false light and public disclosure torts.
Intentional Misrepresentation (Fraud or Deceit)
(1) Affirmative Misrepresentation by the defendant (silence will not due); (2) there must be fault
(scienter), meaning that the plaintiff must prove that the defendant knew the statement in
question was false; (3) the statement must be made with intent to induce reliance, in other words
the statement must be material to the subject matter at hand; (4) need both actual and justifiable
reliance; and (5) monetary damages.
-Concealment and Nondisclosure
-Third Party Liability
-Misrepresentation of Law
Negligent Misrepresentation (careless misstatement as opposed to an intentional one)
-Mostly involved in cases concerning commercial transactions, parties are almost always
businesses or their employees.
-Defendant is only liable if he knew that the plaintiff would be relying on the information
that he was giving. (Misstatement is directly made to the plaintiff)
-Duty: special reliance or any foreseeable action in the part of the defendant (minority rule)
Interference with Advantageous Relationships
-Inducing a breach of contract: an intentional action which causes a third person to breach a
contract with the plaintiff.
-Interference with Contractual Relations: defendant interferes with an existing contract without
causing a breach, but makes the performance of that contract much more difficult.
-Interference with perspective economic advantage: defendant interferes with someone’s
business prospects. (Does not involve a contract)
Tortious interference, also known as intentional interference with advantageous relationships, in
the common law of torts, occurs when a person intentionally damages the plaintiff's contractual
or other business relationships. This tort is broadly divided into two categories, one specific to
contractual relationships (irrespective of whether they involve business), and the other specific to
business relationships or activities (irrespective of whether they involve a contract).
-Tortious interference with contract rights can occur where the tortfeasor convinces a party to
breach the contract against the plaintiff, or where the tortfeasor disrupts the ability of one party
to perform his obligations under the contract, thereby preventing the plaintiff from receiving the
performance promised. The classic example of this tort occurs when one party induces another
party to breach a contract with a third party, in circumstances where the first party has no
privilege to act as it does and acts with knowledge of the existence of the contract. Such conduct
is termed tortious inducement of breach of contract.
-Tortious interference with business relationships occurs where the tortfeasor acts to prevent the
plaintiff from successfully establishing or maintaining business relationships. This tort may
occur when a first party's conduct intentionally causes a second party not to enter into a business
relationship with a third party that otherwise would probably have occurred. Such conduct is
termed tortious interference with prospective business relations, expectations, or advantage or
with prospective economic advantage.
-Injurious Falsehood: False statements disparaging the plaintiff’s property or business interests
thereby causing him economic harm.
Strict Liability
Abnormally Dangerous Activities
A. The activity will never be safe.
B. If the harm does occur it is likely to be severe.
C. Uncommon in the community where it takes place.
-Any precautions taken by the defendant are irrelevant.
-Proximate cause still limits liability.
Products Liability
-Applies only against merchant sellers of goods.
-Must prove that the product is defective.
-Product is in the same condition as it was when it left the seller.
-Plaintiff must prove that they were using the product in a foreseeable way.
In legal disputes regarding product liability, a risk-utility test is used to determine whether a
product's design or warning is defective, thereby making the manufacturer liable for injuries
caused by its product.
The manufacturer is held liable under the risk-utility test if the probability of injury times the
gravity of injury under the current product design is more than the cost of an alternative
reasonable design plus the diminished utility resulting from modifying the design. More simply,
the court considers if the economic costs (determined from likely lawsuits) are higher than the
cost of changing the product design (ex: installing a plastic guard) plus the loss of use of the
product (ex: the new guard makes it harder to use the product).
Defenses to Product Liability
Negligent behavior by the plaintiff (only seems to work in states were comparative negligence
standard is used)
Adequate Warning
Unforeseeable use of the product
The affirmative defense of “state of the art” applies when a defendant manufacturer could not
have known about a particular danger or hazard in a product by using the scientific or technical
knowledge available at the time the product was made or sold. A “state of the art” product is one
that conformed to all safety and health standards required at the time it was made, even if
research since that time has shown that the materials it was made of or the contaminants it
releases are actually hazardous to human health.
Vicarious Liability
Vicarious liability refers to a situation where someone is held responsible for the actions or
omissions of another person. In a workplace context, an employer can be liable for the acts or
omissions of its employees, provided it can be shown that they took place in the course of their
Respondeat Superior. A legal doctrine, most commonly used in tort, that holds an employer or
principal legally responsible for the wrongful acts of an employee or agent, if such acts occur
within the scope of the employment or agency.
Nondelegable Duties
Inherently Dangerous Activities
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