INTENTIONAL TORTS
NOTE: Clusters to keep in mind (if you talk about one, you should more than likely talk about the
other)
1. Assault, Battery, and IIED
2. Trespass to Chattel, Conversion
3. Trespass to Land, Nuisance (consider)
Intentional Torts (ABC FITT)
1) Assault
a) Willful act
b) With intent
c) Cause
d) Reasonable apprehension of harm/bodily injury
***A failed battery
2) Battery
a) Willful act
b) With intent or with knowledge to a substantial certainty
c) Causing
d) Harmful or offensive touching
***A successful assualt
3) Conversion
a) Intentional
b) Interference with chattel
c) Of another
d) Where dominion and control over chattel is serious and substantial
4) False Imprisonment
a) Willful/nonconsensul intent to
b) Confine or restrain
c) Another
d) Where there is no reasonable means to escape
e) Plaintiff is aware/knows that he is being confines
i) Defenses:
(1) Shopkeepers Privilege
(2) Resonable detention – e.g., police situation
(3) Consent – e.g., you're okay with it
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5) Intention Infliction of Emotional Distress (IIED)
a) Extreme/outrageous conduct – beyond all possible bounds of decency
b) Intentional and reckless
c) Cause
d) Emotional distress
e) Bodily harm/injury are not required
i) Witnessing a 3rd Party in regards to claiming IIED
(1) To a member of immediate family
(2) Any pther person, if the distress results in bodily harm
(3) Where the 3rd party is present at the time
Negligent Infliction of Emotional Distress (NIED)



Majority View: NIED is a stand alone harm, and P can recover even if she only suffers emotional
damages.
Minority View: (“Impact” Rule) Without impact, there is no basis for the parasitic emotional
damages.
For NIED, D should reasonable foresee harm to P (he has a duty to P) who has suffered PHYSICAL
INJURY from shock when:
o P was near the scene of the accident (w/in zone of danger)

Zone of Danger: P was in the zone of danger of physical impact
o P was a contemporaneous observer
o P is/was closely related to the Direct Victim
6) Trespass to Land
a) Intentional
b) Entry upon the land of another (direct or indirect)
c) Without consent
d) Damage required only if an intangible trespass
7) Trespass to Chattel
a) Intentional
b) Interference with chattel
c) Of another
d) Where dominion and control over chattel is serious and substantial
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Defenses to Intentional Torts
1) Consent
a) Consent comes in two forms:
i) Express: Orally or written
ii) Implied: Factually and by law
b) Consent may be ineffective due to:
i) P is uninformed of material risks
ii) P is mistaken regarding risks
iii) D misrepresnted material facts
iv) D used duress to obtain consent
v) P did NOT have capacity to consent
vi) P cannot consent to violate the law
vii) D exceeded the scope of the consent
2) Mental Disability
a) Under what circumstances will a mental disability or disorder be a valid defense?
i) When the mental disability or disorder affects:
(1) Volition
(2) Appreciation of wrongfulness
3) Self-Defense
a) Self Defense Rule: a person may use reasonable force when he reasonably believes attack likely
to cause death or GBI is imminent and unprivileged.
b) Duty to Retreat
i) Majority – no duty to retreat inside or outside of home
ii) Minority – no duty to retreat inside home
4) Defense of Others
a) Defense of Others: D has a reasonable beliefe that a 3rd party has a right to defend himself and D
uses only reasonable necessary force for the circumstances.
i) One may use reasonable force in the protection of his property, but such right is subject to
the qualification that one may not use means of force as will take human life or inflict GBI.
5) Defense of Property
a) Other issues regarding defense of property:
i) An owner/possessor may use self-help to retrieve his personal property. He first must make
demand for property, inless it is known the demand would be futile.
(1) Majority – An owner/possessor may not use force to recover wrongfullt taken real
property.
(2) Minority – After reasonable diligence, an owner/possessor may use reasonable force to
recover wrongfully taken real property.
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6) Necessity
a) Rule: A person may take or damage the property of nother when reasonably necessary to avoid
greater harm to life or property. The person could remain liable for the actual damage done to
the property of another.
b) Public Necessity Rule: In cases of actual necessity, private property of an individual may be
taken and used or destroyed for the relief for the relief or safety of the many without subjecting
those individuals or agents to personal liability.
7) Authority
a) Authority include the following:
i) Arrest
ii) Shopkeeper's Privilege
(1) A shopkeeper may stop a person where he:
(a) Holds a reasonable belief that the person detained has commited a theft
(b) Used only a reasonable and necessary amount of force
(c) The duraction of the detention is reasonable
iii) Discipline
(1) By parent or teacher; a parent or teacher may use force that is reasonably necessary
under the circumstances. Factors to look at:
(a) Age
(b) Sex
(c) Physical condition of child
(d) Motive of the adult
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NEGLIGENCE
Negligence (DSB CDD)
1) Negligence
a) Negligence concepts are broken down by elements:
i) Duty
(1) Duty can be established by:
(a) Reasonable foreseeability
(b) An affirmative act by the defendant
(i) An affirmative act by the defendant includes:
1. D creates peril
2. D takes affirmative steps to assist/aid
a. Majority – a promise to aid does not create a duty to the promisee
b. Minority – a promise to aid does not create a duty to a promisee, unless
the promisee reasonably relied on the promise of aid to his detriment
(c) A special relationship between defendant and plaintiff
(i) A special relationship between actor and third party exists in the following:
1. Employee duty to employee
2. Common carrier/innkeeper duty to customer
3. School/teacher duty to pupil
4. Land occupier or land owner to invitee/licensee/or trespasser
a. Categories of trespassers:
i. Unknown
ii. Known
iii. Frequent
iv. Children
 Attractive Nuisance Doctrine: Land owner iis liable if:
o Knows likely to trespass
o LO knows of unreasonable risk
o Children unlikely to appreciate risk
o Risk versus utility of condition
o LO fails to takereasonable care to protect children
5. Jailor duty to prisoner
6. Doctor duty to patient
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ii) Standard of Care
(1) What determines SOC?
(a) Reasonably Prudent Person Standard
(b) Customs or Standard in an Industry
(c) Statutes and Regulations
(2) Minor SOC set by age, unless engaged in activities normally undertaken by adults. If
adult conduct, then adult SOC applied.
(a) Majority: holding a child to the standard if a reasonably careful person of the same
age, intelligence, and experience.
(b) Minority:
(i) 6 and below – cannot be negligent because cannot be a RPP
(ii) 7 to 13 – presumed not negligent because probably not a RPP
(iii) 14 and above – presumed capable of negligence because probably can be RPP
(3) What is the SOC for experts?
(a) The industry standard create a SOC greater than that of the RPP, but not lower than
the RPP
(4) Rule: The statutes sets the SOC where:
(a) Plaintiff person to be benefited by the statute,
(b) Injuries of the character statute designed to prevent, and
(c) The violation of the statute caused the injuries.
(5) Two-prong Test (Restatement Third Torts):
(a) The harm is of a type designed to be prevented by the statute
(b) The plaintiff is of the class designed to be protected
(c) Nexus between the statute and the harm
(i) Excusing the violation of the statute:
1. Compliance would have caused greater risk of harm
2. Compliance would have been impossible
3. An actor made reasonable effort to comply with statute
iii) Breach of Duty
(1) Negligence is the omission to do something which a reasonable man would do or doing
something which a prudent and reasonable man would not do.
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iv) Causation
(1) Actual Causation
(a) To find actual causation, we do so using the “But For” test:
(i) E.g., “But For the defendants act of pulling the chair (CONDUCT), the woman
would not have fallen and broken her hip (HARM); therefore, it was in fact the
boys act of pulling the chair (SUBSTANTIAL FACTOR) that caused the injury to
the woman.”
(ii) But For Test – tortious conduct must be a factual cause of harm for liability to
be imposed. Conduct is a factual cause when the harm would not have occurred
absent the conduct.
1. Substantial Factor – a substantial factor in causing harm is a factor that a
reasonable person would consider would consider to have contributed to
the harm. It must be more than a remote or trivial factor. It does not have
to be the only cause of the harm.
(2) Proximate Causation/Legal Causation
(a) When we look at proximate cause, we take into consideration attenuation via time,
space, event, and whether the harm was reasonably foreseeable due to the act.
(i) Foreseeable/dependent intervening forces DO NOT cut off liability to the
defendant.
1. Examples include the following:
a. Rescuers
b. Medical assistance – the malpractice of physicians and nurses are
foreseeable intervening forces and will not cut off liability to the original
tortfeasor.
c. Diseases or subsequent injuries tied to original injury – because of the
original injury, for instance a staph infection at hospital or fall on
crutches, are foreseeable intervening acts that will not cut off liability to
the original tortfeasor.
***If the likelihood that a third person may act in a particular manner is
the hazard… which makes the actor negligent, (the intervening conduct)
does not prevent the actor from being held liable.
E.g., you knew that the person was a bad driver, yet you allowed them
to borrow your car anyway and they hit a pedestrian.
(ii) Unforeseeable/independent intervening forces WILL cut off liability to the
defendant.
1. Examples include the following:
a. Naturally occurring phenomena: “Acts of God”
b. Criminal acts of others
c. Intentional torts of others
d. Gross negligence of others
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Res Ipsa Loquitor – (“the thing speaks for itself”) is circumstantial evidence that tends to
prove breach of duty and causation.


This is a principled of logic and inference.
o E.g., Because of Fact A, one can logically infer Fact B.
Prosser Test is used to test for res ipsa. The test consists of answering “YES” to the
following questions:
o The event does not occur in the absence of someone’s negligence
o D has exclusive control of the instrumentality
o P is blameless
v) Damage/Injury
(1) General Damages
(a) Pain and Suffering
(i) Rule: Cognitive awareness is a prerequisite to recovery for pain and suffering
and loss of enjoyment of life; pain and suffering and loss of enjoyment of life are
too imprecise to be separate awards.
(2) Special Damages
(a) Economic Loss
(i) Economic damages include the following:
1. Loss of wages
2. Work-life expectancy
3. Imputed income
4. Mitigation of damages
5. Discounting to present value
6. Medical expense
(3) Wrongful Death
(a) Wrongful death awards should be fair and equitable, including:
(i) Medical expenses
(ii) Hospital expenses
(iii) Pain and suffering of decedent before death (in some jurisdictions)
(iv) Loss of financial support
(v) Loss of companionship
***Additional damages may include punitive damages as well as reputation
damages.
(4) Loss of Consortium
(a) Loss of consortium means loss of companionship, love, felicity, and/or sexual
relations.
(5) Punitive Damages
(a) Factors to consider in rewarding punitive damages per Justice Kennedy:
(i) D’s degree of reprehensibility
(ii) Difference between the compensated harm and the punitive damages
(iii) Difference in comparable cases
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vi) Defenses
(1) Defenses to negligence include:
(a) Contributory Negligence
(i) The burden of proof in contributory negligence: The defendant has to prove the
plaintiff’s negligence. The defendant also has the burden to prove that the
plaintiff’s negligence, if any, was a legal (proximate) cause of the plaintiff’s
damage.
1. Exceptions include:
a. Emergency
b. Plaintiff is a minor
i. Majority View – reasonable child under circumstances
ii. Minority View – broken down by age brackets
c. Last clear chance doctrine
i. Where the defendant has the last clear chance to avoid injury by
exercise of subsequent due care, plaintiff’s contributory negligence
will not bar recovery
d. Inattentive Plaintiff can recover if:
i. Ps negligent inattention subjects him to harm
ii. P can avoid harm with reasonable vigilance
iii. D knows or should know of Ps inattention
iv. D can avoid harm to P with reasonable care
e. Helpless peril plaintiff can recover if:
i. Ps negligence subjects him to harm
ii. P can not avoid harm
iii. D knows or should know of Ps helpless peril
iv. D can avid harm to P with reasonable care
***If A vicariously liable negligence of B, then contributory
negligence of B should be imputed to A to bar recovery.
(b) Assumption of the Risk
(i) Primary/Secondary AOR
1. Primary AOR: D was not negligent because he owed no duty or breached
non duty to P.
2. Secondary AOR: P unreasonably acted in the face of a known risk.
(ii) Expressed/Implied AOR
1. Express AOR: P, in writing or orally, expressly relieves D of liability.
2. Implied AOR: Rule:
a. P had knowledge of risk and appreciated nature of the risk
b. P appreciated the specific danger that ultimately injured him
c. P voluntarily chose to subject himself to the risk or danger
(iii) Employment Risks
(c) Comparative Negligence
(i) Modernly, where the plaintiff has contributed to his own injuries, total damages
caused by the defendant and plaintiff will be apportioned based on percentage
of fault.
1. Pure comparative
2. Partial comparative
3. Aggregate
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(ii) Vicarious Liability: doctrine where one party can be held responsible for the
acts/omissions to act by another party. Examples of relationships that have this
structure of relationship include:
1. Employer – Employee (Respondeat Superior)
a. Rule: an employer is liable for the negligent or strict liability acts of his
employees if they are acting within the scope of their employment.
i. The acts are within the course and scope when they are closely
connected to the employment and are done in a manner designed
to carry out objectives of employment.
 Frolic – a major deviation from work related activities
 Detour – a small deviation within scope of employment
2. Independent Contractor
a. Rule: employers are not liable for torts of independent contractors
because ICs have control over the “manner and method” of performing
their work”
i. A worker is an independent contractor when:
 Worker is free from the direction and control of the
person/entity that hired him/her
 Work is outside usual course of hiring
 The worker is usually an IC
b. An employer remains vicariously liable for an independent contractor in
the following circumstances:
i. When the IC is conducting a non-delegable duty (e.g., a land-owner
cannot delegate the responsibility for maintenance repairs to his
property)
ii. The IC is engaged in an inherently dangerous activity for the
employer (e.g., fumigation)
iii. The IC is acting under color of apparent or implied authority of
employer (e.g., the employer or the IC is holding himself out as an
employee)
3. Joint Enterprise
a. Rule: partners and joint ventures are vicariously liable to one another if
the tortious act comes within the course and scope of the partnership
or joint venture.
4. Owner – Driver
a. Family Car Doctrine: owner will be liable if driver is part of the family
b. Permissive Use Doctrine: owner will be liable if he gave permission to
the driver to drive
c. Direct Owner: where owner knows or should know of risk associated
with particular driver
5. Parent – Child
6. Bailor – Bailee
a. Rule: the bailor is not vicariously liable for the tort of his bailee.
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7. Tavernkeeper – Patron
a. Traditionally, the tavernkeeper had no liability for the torts of a patron.
b. Modernly, statutory development have made tavern keepers vicariously
liable to patrons for the torts caused by other patrons. This liability
flows from the duty of a business to warn and make safe premises for
invitees.
Calculating Liability
1.
2.
3.
4.
Joint and Several Liability
Contribution
Indemnifications
Satisfaction and Release
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STRICT LIABILITY
Strict Liability
1. Strict Liability
a. In a limited number of cases, D will be deemed liable for the injury to P whether or not he
exercised due care.
i. Public Policy: the party that created the risk should bear the responsibility of the
consequence of the risk.
ii. The rule of strict liability should be applied when:
1. D brought something on to his land
2. Did something unnatural/artificial to his land; made artificial use of his land
3. The thing he brought onto his land is likely to do mischief
4. The thing he brought onto his land escapes and causes mischief
a. WILD ANIMALS/DOMESTIC ANIMALS
i.
Defendant will be held strictly liable for his animals where they possess
“known dangerous propensities”
ii.
For domestic animals:

Majority: the owner of a domestic animal with “known dangerous
propensities” that cause an owner to realize the animal presents a
danger, would be liable for injuries caused by the domestic animal.

Minority: the owner of a domestic animal, regardless of former
viciousness or knowledge thereof, is liable for injuries caused by the
domestic animal.
iii.
For escaping animals:

Wild Animals – STRICT LIABILITY APPLIES

Domestic Livestock – “an owner or possessor of livestock or other
animals, except dogs and cats, that intrude upon the land of another is
subject to strict liability for physical harm caused by the intrusion.”
iv.
Distress damage feasant: self-help; the plaintiff may hold the escaped animal
until he receives payment for the damage the escaped animal caused the
plaintiff.
b. ABNORMALLY DANGEROUS ACTIVITIES
i.
An actor who carries on an abnormally dangerous activity is subject to strict
liability for physical harm resulting from the activity.
ii.
An activity is abnormally dangerous if:

The activity creates a foreseeable and highly significant risk of physical
harm even when reasonable care is exercised by all actors

The activity is not one of common usage.
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NUISANCE
Note: If you think there is a possible nuisance action, ask “does the plaintiff have standing? Standing is
the right to seek redress for an identifiable injury or potential injury.
Nuisance
1. Nuisance
a. Private Nuisance
i. Nuisance elements:
1. Plaintiff has property interest
2. Non-trespass invasion is substantial
3. Defendant is cause of invasion
4. Invasion is intentional and unreasonable; or unintentional and negligent, reckless, ultrahazardous conduct.
ii. In a private nuisance, the plaintiff must show property rights in the land harmed. He must
show the following:
1. He is a possessor of the land
2. He has an easement
3. Has a non-possessory estate (future estate)
iii. PRIVATE NUISANCE DEFINED BY PROFESSOR ALLEN:
1. An act or failure to act
2. Intentionally, recklessly, negligently, or conducting abnormally dangerous activity
3. That causes
4. Substantial, unreasonable interference with
a. Unreasonable interference determined by the balancing test
OR
b. Significant or substantial harm determined by the objective ordinary prudent person
test
5. Plaintiff’s use and enjoyment of his land
b. Public Nuisance
i. Public nuisance is an unreasonable interference with a right common to the general public.
ii. Public Nuisance:
1. An unreasonable interference with a right common to the general public
2. Where an individual has an injury greater or different than the general public
3. The area is not governed by existing administrative or criminal remedies designed to
protect the public
2. Defenses to Nuisance
a. Contributory Negligence
b. Assumption of Risk
c. Laches
d. Coming to the Nuisance
e. Statute, regulations or ordinance permitting land use
3. Remedies to Nuisance
a. Damages: legal remedy – money
b. Injunctive Relief: equitable remedy requiring the court to balance the hardship
c. Self-help
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STRICT PRODUCTS LIABILITY
Analytical Flow:
1. Proper Plaintiff and Proper Defendant
2. Defect
a. Manufacturing
b. Design
c. Warning
3. Causation
4. Damages
5. Defenses
a. Misuse
b. Assumption of Risk
c. Comparative Fault
1. Proper Plaintiff and Proper Defendant
a. Proper Plaintiff: an end user, either purchaser or consumer, that is injured by a defective
product can bring a suit for strict product liability.
b. Proper Defendant: all entities in the distribution chain, commercial lessors, builders of new
homes, and sellers of used goods.
i. NOT a Proper Defendant:
1. One time sellers (e.g., garage sellers)
2. Service providers
a. Doctors or hospitals
b. Pharmacists
c. White water rafting
d. Gyms
2. Defect:
NOTE: In Micalief v. Michle Co (1976), holding: “we hold that a manufacturer is obligated to
exercise that degree of care in his plan or deign so as to avoid any unreasonable risk of harm to
anyone who is likely to be exposed to the danger when the product is used in the manner for
which the product was intended, as well as unintended yet reasonably foreseeable.”
a. Manufacturing Defect: a product that departs from its intended design even though all possible
care was exercised in the preparation and marketing of the product.
b. Design Defect: when the foreseeable risks of harm posed by the product could have been
reduced or avoided by the adoption alternative design by the seller or other distributor, or a
predecessor in the commercial chain of distribution, and the omission of the alterative design
renders the product not reasonably safe.
i. In a design defect, the product is manufactured as intended, but the design itself presents a
danger of foreseeable personal injury or property damage.
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ii.
Designer defect is determined by the following tests:
1. Consumer Expectation Test – a product is in an unreasonably dangerous defective
condition when it is more dangerous that would be contemplated by the ordinary
consumer with ordinary knowledge common to the community. (e.g., lawn darts)
2. Danger-Utility Test – a product is defective if the danger of the product is greater than
the utility. Danger refers to likelihood, nature, and severity of potential injuries. A
sliding scale is employed. Also, available alternative designs may be considered in
determining if defendant placed a defectively designed product into the stream of
commerce.
3. Hindsight Negligence Test – based on what we know now (time of lawsuit) about the
defective product, was placing the defective product into the stream of commerce
something a reasonably prudent person would have done?
***State of the Art: not just a common practice in the industry, but that which
embraces the “scientific, technological, and safety standards that are reasonably
feasible at the time of the product design.”
c. Warning
i. Warning Defect: a product has a warning defect when it fails to adequately describe the
risk of use of the product.
1. “Foreseeable risks of harm posed by the product could have been reduced or avoided
by the provision of reasonable instructions or warnings.”
2. DUTY TO WARN
a. Manufacturers of drugs have a duty to warn the end user of the drug about the
dangers of the drug.
In some jurisdictions, manufacturers are allowed to defend against as warning
defect claim by blaming the Learned Intermediary for the failure to warn the end
user.
Majority of Jurisdictions hold: the world has changed. Drug manufacturers are
directly marketing end users, who are not relying on the Learned Intermediary.
The manufacturer must provide the warnings to the end user.
In the Minority Jurisdictions, remember that Learned Intermediary is a defense to
be used by the manufacturer of the drug.
The Heeding Presumption requires the plaintiff show the LI would have heeded
the manufacturer’s warnings if the warnings were adequate. If the physician
would still have prescribed the in the same manner, then plaintiff loses.
i. Pharmacists Duty to Warn:
1. Duty to fill prescription correctly
2. Duty to remedy inadequacies on the face of the prescription
3. Duty to take reasonable care in preparing and dispensing the medicine
(duty can be heightened by custom and practice).
a. Majority – pharmacists do not have a duty to warn patients of risk of
prescription drugs.
b. Minority – pharmacists have a duty to warn
i. Doctor of contradiction or abnormally high dosage
ii. Patient when pharmacy advertises enhanced warnings or safety
system
iii. Patient when knows or should know of patient allergy
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3.
4.
Duty to Warn Regarding Unavoidably Dangerous Products
a. A product that cannot be made safe for its intended purpose but is essential or
necessary can still be marketed with adequate warnings.
Patent Danger
a. When danger is generally known, no warning is required. Examples include:
i. Sharp knives
ii. Alcohol
iii. Cigarettes
iv. Automobiles
v. McDonald hamburgers
***A RPP would provide a post-sale warning when:
 Seller knows product poses a substantial risk
 Those that need the warning can be identified
 The warning can be effectively communicated
 The risk of harm is greater than the burden of providing the warning
d. Causation
i. Actual Causation
1. But For Cause
2. Substantial Factor
a. Plaintiff must prove warning would have made a difference: heeding
b. Some jurisdictions: if harm type to be avoided by a warning, burden shifts to
defendant
ii. Proximate Causation
1. Proximate Causation: as in negligence, unforeseeable intervening acts will cut off
liability to those above the distribution chain.
2. The test-point will be “is the act reasonable foreseeable.”
e. Damages
i. Harm includes economic loss if caused to :the plaintiff’s property other than the defective
product itself.
ii. Economic Loss Rule: “because no person was injured and no other property damaged, the
homeowners had no cause of action in Tort.”
f.
Defenses
i. The defenses available to those in chain of commerce include:
1. Misuse by end user (contributory negligence?)
2. Assumption of risk
a. Plaintiff must know of the risk of the defective product and voluntarily use it anyway
b. Subsequent alteration in an unforeseen manner
3. Comparative fault
a. Plaintiff’s own negligence, misuse, or abnormal use can limit his recovery in
apportionment.
b. Use the traditional comparative fault analysis: pure or partial
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REVIEW ON NEGLIGENCE THEORY PRODUCTS LIABILITY
Elements:
1.
2.
3.
4.
5.
6.
Duty of Care
Standard of Care: RP-mfg
Breach: failed to exercise due care, inspect, discover defect
Causation
Damages
Defenses
REVIEW WARRANTY THEORY PRODUCTS LIABILITY
Flow Analysis:
1. Privity Needed?
2. UCC 2-318
a. UCC 2-318: Alternative A – an express or implied warranty extends to any natural person who
is in the family or household of his buyer or who is a guest in his home if it is reasonable to
expect that such person may use, consume, or be affected by the goods and who is injured in
person by breach of the warranty. A seller may not exclude or limit the operation of this
section.
b. UCC 2-318: Alternative B – an express or implied warranty extends to any natural person who
may reasonably be expected to use, consume, or be affected by the goods and who is injured
in person by breach of the warranty. A seller may not exclude or limit the operation of this
section.
3. Express Warranty Given?
a. UCC 2-313: Express Warranty exists where the defendant made a representation about the
nature of quality of the goods.
4. Implied Warranty Given?
a. UCC 2-314: Implied Warranty means goods are “fit for the purpose” for which such goods are
normally used. Also known as “merchantability.”
b. UCC 2-315(1): Implied Warranty when defendant knows or has reason to know that:
i. The plaintiff is purchasing the goods for a particular purpose
ii. The plaintiff is relying upon the defendant’s expertise to furnish the appropriate goods
5. Causation
NOTE: For damages under the warranty theory of products liability: Personal injury = no privity is
required; Purely economic loss = privity is required
6. Damages
7. Defenses
a. Disclaimer: e.g, “as is”
UCC provides that it is unconscionable for a seller to limit remedies for breach of warranty on
personal injury claims.
If seller has given express warranty, he cannot disclaim implied warranty.
Disclaimers and waivers do not bar otherwise valid product liability claims
b. Failure to notify seller
c. Contributory negligence
d. Comparative negligence
e. Assumption of risk
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DEFAMATION
NOTE: Cluster to be aware of – Where there is Defamation, also look for False Light, IIED, and NIED.
You may need to also be aware of economic harms such as:
Fraud, Negligent Misrepresentation, and Trade Libel
Defamation Elements:
1.
2.
3.
4.
5.
6.
False defamatory statement
Of and concerning plaintiff
Published to a third party
With the intent (malice-negligence)
Causes damage to the reputation of P
No defenses for D
1. False Statement of Fact
a. Opinion, interpretation, theory, conjecture, or surmise are not actionable.
b. Falsity is not sufficient, it must also be defamatory.
i. Defamation is divided into Libel OR Slander:
1. Libel – permanent in nature; for example, books, newspapers, TV, or radio
a. Libel is actionable without proof of special damages (economic loss). Damages are
presumed.
2. Slander – ephemeral (short-lived); for example, speech
a. Slander required proof of special damages (economic loss) unless the slander falls
into specific categories deemed presumptively harmful.
b. Slander Per Se:
i. Loathsome disease
ii. Criminal conduct regarding moral turpitude
iii. Imputation of unchastity in a woman
iv. Slander regarding trade or business
ii. Defamation Per Quod: because the defamatory nature OR defamed person is not obvious
to the neutral reasonable recipient, additional, and extrinsic information is needed to
determine if the statement is defamatory.
1. Groups: whether a person identified as part of a group is defamatory is determined on a
case by case basis.
iii. When a “substantial and respectable minority” of reasonable and prudent members of the
community find there is damage to reputation.”
2. Published to a Third Party
a. Publication: at least one other person, not connected to the plaintiff, heard the false and
defamatory statements and understood them and knew they related to the plaintiff.
***Publication cannot be accidental. There must be some level of fault: intentional, reckless, or
negligent.
i. Single Publication Rule: “the publication of a defamatory statement in a single issue of a
newspaper, or a single issue of a magazine, although such publication consists of thousands
of copies widely distributed, is, in effect, one publication.”
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3. Intent Level of Source (Speaker of Writer)
a. No intent (SL): thought it was true, funny, or an opinion
b. Negligent: did not reasonably believe it was true
c. Malice: knew false or published with reckless disregard as to falsity
4. Damages
a. Damages in defamation are broken into two categories:
i. General Damages: pain and suffering, loss of consortium, emotional based damages
ii. Special Damages: pecuniary (money) damages
b. Presumed Damages: when the false and defamatory statement is libel (permanent) or slander
(ephemeral/short-lived) per se, the plaintiff is presumed to have suffered damage.
i. Plaintiff can recover “general damage” from the presumption and/or establish actual
pecuniary loss (special damage).
c. Punitive Damages: plaintiff may recover punitive damages where the defendant’s false and
defamatory statement was committed with malice.
i. Malice: requires that the defendant knew of the falsity, or reckless as to the truth or falsity
of the statement, at the time of the publication, but published anyway
ii. Eight Amendment: and the penalty is not grossly excessive
d. Non-monetary Remedies:
i. Injunctions
ii. Retractions
iii. Reply statutes
iv. Declaratory Relief
v. Libel “Tourism”
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INVASION OF PRIVACY
Invasion of Privacy
1. Invasion of Privacy
a. Invasion of Privacy comes in four different flavors:
i. Intrusion Upon Seclusion: where on person intentionally intrudes, physically or otherwise,
upon the seclusion of another such that the intrusion would be highly offensive to a
reasonable person.
1. Element of Intrusion Upon Seclusion:
a. Intentional
b. Intrusion
c. Into privacy (where one has the reasonable expectation of privacy)
i. The intrusion would be “highly objectionable or offensive” to a reasonable
person
ii. Appropriation of Identity or Likeness; Right of Publicity
1. In appropriation of Identity cases, P must prove:
a. Defendant did not have authorization for the appropriation of identity, likeness,
image, etc.
iii. Disclosure of Private Facts
1. “Things that you don’t want out in public (not necessarily untrue)”
2. Public Disclosure of Private Facts: where one person intentionally discloses private facts
about another person to the public.
a. The private fact must be disseminated to the “public.” Public means so many people
heard about the fact that the dissemination can be regarded as public knowledge.
(e.g., twitter, FB)
b. The disclosure must be offensive to the reasonable person and be of legitimate
public concern.
i. Compensatory damages lost due public disclosure (general and special
damages)
AND possibly
ii. Punitive damages in done – purposefully, maliciously, and intentionally
c. Defenses to Public Disclosure of Private Facts include:
i. Public disclosure was news-worthy; that is, facts were of a legitimate public
concern.
ii. Public disclosure was privileged
1. Qualified
2. Absolute: part of public record
iii. Constitutional Law: First and Fourteenth Amendment
iv. Consent was given (e.g., interview was given)
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iv.
Portrayal in a False Light
1. False Light: where one person:
a. Maliciously
b. Publishes matters that
i. Publication must be to a substantial number of people. A reasonable person
would find the false light to be “highly offensive”
c. Portray another in a false light
i. False light means attributing to plaintiff’s views he does not hold or actions he
did not take
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ECONOMIC HARMS
There are seven categories of economic harms:
1.
2.
3.
4.
5.
6.
7.
Fraud/Intentional Misrepresentation
Negligent Misrepresentation
Intentional Interference with a Contract
Interference with Prospective Advantage
Negligent Interference with Economic Relationships
Unfair Competition
Injurious Falsehood
1. Fraud
a. Fraud elements:
i. Intentional
ii. Misrepresentation
1. Misrepresentation, or deceitful statement, can occur in three ways:
a. False affirmative assertion
b. Active concealment
c. Failure to disclose
i. Where D has a fiduciary relationship: most commercial transactions involve
parties that have an arm’s-length relationship and so understand there is no
obligation to disclose commercial information to the other
ii. Where D made an assertion he believed to be true, but later learned was false
and fails to disclose the newly acquired information
iii. Where D makes incomplete or unambiguous assertions that render assertions
misleading , D has a duty to clarify ambiguity created
iv. Where D makes a knowingly false assertion, not intending reliance, but learns a
party is relying on the assertion and fails to disclose
v. Where P could reasonably expect disclosure
vi. An easy fix is for buyers and sellers to ask relevant questions before the
completion of the transactions
iii. Material
1. A representation is material if:
a. A reasonable person under like or similar circumstances would have been
influenced by the representation
OR
b. Defendant knows the person was actually influenced by the information
iv. Made with scienter (intent to deceive)
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v. Justifiably relied upon by Plaintiff
1. A reasonable person would have relied upon the representation. Justifiable reliance can
be difficult to establish in some cases
a. There is no justifiable reliance where the representation is patently false
b. There is no justifiable reliance where the representation is merely opinion or puffing
i. Puffery is NOT an exception to justifiable reliance where:
1. D has a fiduciary relationship
2. D takes advantage of a position of trust or confidence
3. P is relying on D’s greater knowledge and D knows P is relying on that
greater knowledge
4. D has failed to disclose conflict of interest
c. There is no justifiable reliance where representation is a statement of law
vi. Caused
1. Actual
a. But for
b. Substantial factor
c. Multiple actors
2. Proximate – attenuation occurs over time or through intervening events
a. Direct
b. Indirect
vii. Economic damage or loss
1. Compensatory: loss suffered
2. Consequential damage: additional loss suffered as a direct result of the fraud
3. Expectancy: gains not received that were anticipated by the deal
4. Punitive damages to punish for egregious conduct (intentional or malicious)
b. Fraud is proven when the false statement:
i. Knowingly
ii. Without believe in its truth
iii. Recklessly, careless whether it be true or false
c. Defenses to Fraud:
i. Comparative fault
ii. Unclean hands
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2. Negligent Misrepresentation
a. Majority: in the majority of states, negligent misrepresentation is not an actionable cause of
action.
b. Minority: negligent misrepresentation is an actionable cause of action where defendant’s held
an honest but unreasonable believe in the truth of his statement.
c. In jurisdictions that permit actions for negligent misrepresentation, plaintiff must establish all
the elements of negligence:
i. Duty
ii. SOC
iii. Breach of duty
iv. Causation
v. Damages
3. Intentional Interference with a Contract
a. Intentional Interference with a Contract Elements:
i. Valid contract between P and another party
ii. D has knowledge of the contract
iii. D intentionally acts to induce breach or disruption of the contractual relationship
iv. Actual interference occurs
v. Damage/loss results
b. In an intentional interference with a contract, where a defendant has induced the breach of
contract or has interfered with a contract, recovery is available for the injured party to the
contract.
c. Intentional Interference with a Contract:
i. The contract must be:
1. In force and effect
2. Legal
3. Not in opposition to public policy
4. Not regarding:
a. At will employment
b. Illegal contracts
c. Non-compete clauses
d. Material contracts
d. Defenses to Intentional Interference with a Contract:
i. Contract was inherently unfair to one party
ii. Intervening party actually an agent of a contracting party within the scope of the agency
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4. Interference with Prospective Advantage
a. An intentional tort. It does not require malice. It is enough to show that D’s conduct was wrong
or unlawful. E.g., violence or the threat of violence, defamation, or fraud.
i. Interference must be wrong
ii. Contract need not be viable
iii. Even a non-contract at-will employee has a cause of action
5. Negligent Interference with Economic Relationships
a. Elements of Negligent Interference with Economic Relationships:
i. Plaintiff is particularly foreseeable or in a particular identifiable class and defendant knows
or has reason to know plaintiffs are likely to suffer
ii. Duty to avoid loss
iii. Breach
iv. Causation
v. Economic loss
***TEST TAKING TIP: Look out for negligent activities that implicate strict liability,
abnormally dangerous activity, negligence, and negligent interference.
HYPO: Kelly Slater’s Surf Park in Lemoore floods. Neighbor Farmer loses 40 acres of
walnuts because the chemicals from the surf park water leach into the soil.
6. Unfair Competition
a. Elements of Unfair Competition:
i. An intentional and unlawful act (fraud/deceit, misrepresentation, violence, molestation,
misappropriation)
ii. Causes
iii. Economic loss to Ps business
b. Unfair competition includes:
i. Predatory pricing
ii. Labor cases
iii. Evanescent products
1. Evanescent products are products that lose their value over time (e.g., news, art,
basketball acores)
iv. Hard products
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7. Injurious Falsehood
a. An injurious falsehood is a false statement made by another by the defendant that causes
economic injury to the plaintiff.
b. Elements of Injurious Falsehood:
i. Knowingly false statement
ii. Published to a third party
iii. With the intent to cause
iv. Others to avoid business with the plaintiff
c. Defenses include:
i. Consent
ii. Privilege
iii. Constitutional overlay – if the statement involves a public official, a public figure, or a
private figure addressing a public concern, the P would beet to establish NYT malice
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IMMUNITIES
1. Immunities:
a. Parent and Child Immunity
b. Spousal Immunity
c. Charitable Immunity
d. Municipal Corporations
e. Sovereign Corporations
f. Official Immunity
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