TORTS OUTLINE
PROFESSOR HAYES – FALL 2020
PRE-MIDTERM: WEEKS 1-6
I. BACKGROUND:
A. Continuum of Fault:
 Highest: intentional torts  recklessness  negligence  strict liability
 vicarious liability (lowest)
 Highest = most “culpability” or responsibility a defendant could be said to
have for the harm done by their conduct
 Amount of responsibility does not affect the amount of damages the
defendant would have to pay
 Intent:
o When defendant’s intent is one or more elements of the tort, it
usually means the defendant had deliberate purpose to cause harm
 Intentional torts: substantial certainty by the defendant that
their conduct will cause harm or offense is enough
o Strict Liability: plaintiff only has to prove that the defendant
caused the harm
o Vicarious Liability: defendant is held liable for harms caused by
another person
 Employer can be liable for employee’s negligent torts but
usually NOT liable for employee’s intentional torts
II. INTENTIONAL TORTS
A. Battery:
Definition: unwanted contact  can be harmful, painful, and/or offensive
Elements:
(1) battery must be an act by defendant
(2) act caused contact with plaintiff
(3) defendant intended to cause harm or offensive contact to plaintiff
(4) contact must be harmful/offensive or both
 Contact does not have to be flesh on flesh
 Examples of indirect contact:
o Defendant caused an object to contact the plaintiff
o Defendant caused plaintiff to contact something else,
even the ground or another surface
o The contact element can be met even if defendant is not
present when the contact occurs
o Contact element can be met when the defendant touches
an object the plaintiff is holding or wearing
o Tangible  includes poison
o Intangible like smoke in few courts but NOT MD
Elements written out: An actor is subject to liability to another for battery if
 (a) he acts intending to cause a harmful or offensive contact
with the person of the other or a third person, and


(b) a harmful contact with the person of the other directly or
indirectly results
Cases:
o Snyder v. Turk: nurse and doctor case demonstrates that intent
to offend and offensive result is sufficient, even when there’s
no intent to harm or harmful result
o Cohen v. Smith: c-section case with no male touching  if
someone expresses lack of consent to a contact, that touching
can be considered offensive
o Both cases above illustrate that whether something is offensive
is generally determined by an objective standard/what offends
a reasonable sense of personal dignity
 Apply the “reasonable person” test by considering how
most reasonable persons would likely feel if contacted,
without consent, in the way the defendant contacted the
plaintiff
Substantial Certainty Standard:
 The intent element is met whenever a defendant realizes that a harmful
or offensive contact is substantially certain to result from their
conduct, whether the defendant actively desires such contract or not.
 Garrett v. Dailey: Kid pulled out chair from underneath woman
o The key is the defendant’s knowledge in the situation
 Juries and judges will consider the defendant’s
experience, understanding, and capacity
o Parental Liability: common law rule that parents are not
vicariously liable for torts committed by their children
 A victim cannot automatically sue the parent unless the
state has a statute imposing liability on parents
 MD: Caps the damages at $10,000 and provides
parental liability only if the child was found to
have committed a crime or delinquent act
 MD: Courts conclusively presume that very
young children are incapable of harmful intent
 Ex: pouring water out of a window onto one or more persons below 
pourer would be substantially certain of at least offending one or more
persons
Transferred Intent (as applied to battery):
 Baska v. Scherzer: demonstrates how the intent to batter one person
will “transfer” to an intent to batter another person who suffers a
harmful or offensive contact instead of or along with the intended
target
 Intent can transfer between victims, torts, harmful to offensive contact,
and offensive to harmful contact
 Extended Liability:
o Tortfeasor is responsible for ALL consequences of a tort to the
direct victim of that tort, even if the consequences are much
more serious than the tortfeasor intended or could’ve foreseen
 Take victim as you find them
Defenses & Exceptions to Battery:
 Consent to touch
 Provocation is NOT a defense
 Self-defense or defense of others when provocation is more than
words
 No fair opportunity to avoid the contact
EXAM:
- MD: “contributory negligence” by customer would completely bar the
customer’s claim of battery
- Go through all elements and then say although the elements of battery
are met, there is no liability because there was consent or the plaintiff was
contributorily negligent
Assault
- ALWAYS consider assault if considering battery, and vice versa
- Battery needs a touch, assault doesn’t
- Assault needs apprehension, battery doesn’t
- YOU CAN HAVE BOTH
- provocation is not a defense
B. Assault and False Imprisonment
Definition: when one person intentionally puts another person in apprehension of
an imminent battery
Elements:
1. Intent can be met by either deliberate purpose or substantial certainty that
the conduct will cause assault or battery or both
2. Plaintiff/victim must have apprehension that a battery is imminent
a. Using the “reasonable persons” test, the facts must be that a
“reasonable person” would believe that a harmful or offensive
contact is imminent.
i. Move or I’ll punch you = assault. The law doesn’t require
you to comply with demands to avoid battery.
b. Imminent does not mean instantaneously, but rather without
significant delay
i. Threats of a future battery are not imminent
Elements written out: An actor is subject to liability to another for assault if
(1) he acts intending to cause a harmful or offensive contact with the
person of the other or a third person, or an imminent apprehension of such
a contact, and
(2) the other is thereby put in such imminent apprehension
- requires both subjective and objective apprehension
Transferred Intent (as applied to assault):

False
Imprisonment
If A does an act with the intent to commit assault, but the action results
in a contact to the plaintiff, then A’s intent to commit assault transfers
to satisfy the “intent” element for the battery on plaintiff
Definition: occurs when the defendant A intentionally confines plaintiff B against
B’s will within boundaries fixed by A so long as B either knows of the
confinement or is harmed by it.
Elements:
1. Confinement
a. Can be actual, physical restraint
b. If a person honestly and reasonably feels like they are not free to
leave or go outside the boundaries set by the defendant, the
element can be met.
i. Examples include threats by defendant of physical harm for
leaving those bounds; assertion of apparently valid legal
authority
c. Can be accomplished by duress of goods
i. Restatement § 40: there is an objective, “reasonable
person” requirement with confinement by duress, that
requires it to be accomplished by something highly
valuable or at least important to the plaintiff
Elements written out: an actor is subject to liability to another for false
imprisonment if:
(1) he acts intending to confine the other or a third person within
boundaries fixed by the actor; and
(2) his act directly or indirectly results in such a confinement of the other;
and
(3) the other is conscious of the confinement or is harmed by it
Shopkeeper Privilege – removes liability for false imprisonment
 Merchant or agent
 Reasonably believes person has stolen property; AND
 Detains person for investigatory purposes or to summon law
enforcement; AND
 Reasonable means of detention used
C. Torts to Property
1. Trespass to Land:
Elements:
(1) entry or causing direct and tangible entry (by person or object)
(2) upon land in possession of another
(3) entry was intentional (purposefully or with substantial
certainty)

Intent element can be satisfied by intent to enter the
land
 Intent to trespass or enter the land wrongfully is
not required
 Not trespass if end up on someone’s land by accident or
someone else forces you there because no intent to
enter land
 Elements written out: one is subject to liability to another for trespass
if he intentionally:
o Enters land in the possession of the other, or causes a thing or a
third person to do so; OR
o Remains on the land; OR
o Fails to remove from the land a thing which he is under a duty
to remove
 Defenses:
o Consent
o Privileged entry
o NOT that the tortfeasor thought it was their land
2. Conversion of Chattel (tangible personal property):
Definition: defendant intentionally exercising “substantial dominion”
over a plaintiff’s chattel, a good or other “thing” that is not land or a
dwelling
Intent: doesn’t need to be intent to do wrong, but it needs to be
intent to do the act
Substantial Dominion:
- Taking possession of it and not returning it to the
plaintiff (taking and keeping it, taking and giving it
away or reselling, or by destroying it.
Example of chattels: vehicles and pets, some intangibles such as
stocks and bonds
3. Trespass to Chattels:
Definition: involves a lesser degree of control than conversion, as where
the defendant deprives on of possession of the chattel for a limited period
of times but it is returned or the defendant interferes with that possession
(causing minor damage to a chattel so that it needs repair)
 Elements: A trespass to chattel may be committed by intentionally
o Dispossessing another of the chattel; OR
o Using or intermeddling with a chattel in the possession of
another
 Caused possessor/owner to lose use of the chattel for a period of
time
o Ex: joyride
 Not as bad as conversion because lesser degree of control over the
chattel
4. Trespass v Conversion
Trespass: interference
Conversion: exercising dominion or control
Matter of Degree – Argue
 Extent and duration of control
 Defendant’s intent to assert a right to the property
 Defendant’s good faith
 Harm done
 Expense or inconvenience caused
EXAM:
 Distinguish between land and a chattel
 Distinguish between conversion and trespass
 Extended liability always applies
D. Defenses to Intentional Torts
(1) Protecting Against Apparent Misconduct of Plaintiff
1. Self Defense & Defense of Others
 One is privileged to use the amount of force reasonably necessary
to repel invasion when one is about to suffer or reasonably believes
they are about to suffer and invasion of person
o The privilege is limited to the amount of force reasonably
necessary and cannot be used to retaliate after the fact
o Consideration: must be reasonable to believe you NEED to
use self-defense and the degree of force can only be amount
reasonably necessary to repel
 MD: Degree of force must be reasonable under
circumstances
o Brown v. Martinez:
 Demonstrates majority view, and answer for this
course, that if a defendant commits an assault, that
would be a valid defense to defend property
 If defendant uses a means of defense with a
significant risk of causing death or injury,
and death of injury actually results, the
defendant will lose the privilege and the
intent to assault will transfer to the battery
that resulted
 Deadly Force: common law says one can use force likely to cause
death or serious bodily harm if one reasonably believes the other is
about to inflict contact that puts one in peril of death or serious
bodily harm that can safely be prevented only by immediate use of
such force.
o Katko v. Briney: deadly force cannot be used to protect
only property, because the law views human life and safety
from serious physical injury as being more important than
property



If a defendant commits an assault but uses a means
of defense with a significant risk of causing death or
injury, and a death or injury results, it is not a valid
defense and the intent to assault will transfer to the
battery that resulted
o One can “threaten,” but not use, deadly force to prevent
non-deadly force from being used against you
o MD: MD statute has modified the common law rules to
strengthen the protection for defenders
 It applies in civil tort cases when the defender is in
their dwelling or place of business
 Defense of self-defense or defense of others will
prevail if the defender reasonably believed that
force or deadly force was reasonably necessary to
repel an attack, and the amount and nature of the
force used was “reasonable under the
circumstances”
Duty to Retreat
o One has a duty to retreat if it is safe to do so, unless they
are in their home or place of business
o MD: retreat is relevant but there’s no specific obligation to
retreat in one’s dwelling or place of business (in common
law, there is always a duty to retreat except from one’s
home)
 Apply “reasonableness” instead of the specific
retreat rule
Transferred Intent (defense of property)
o A assaults B to defend property (privileged defense) but
uses a defense with a significant risk of causing death or
serious injury AND death or serious injury actually results
(not privileged)
2. Detention Defense (also mentioned in False Imprisonment)
a. Established (in most states, including MD) by a statute applying to
merchants
i. Elements:
1. (Gortarez) whether the merchant or its employees
had reasonable cause or probable cause to believe
that a person had committed theft is only the first
requirement for a valid detention defense
a. MD: “probably cause” is first element
phrasing
2. Detention must be for the purpose of the merchant
either engaging in further investigation of the
suspected theft and/or the merchant summons law
enforcement to do the investigation
3. Means of detention must be reasonable
a. Gortarez: security guard putting suspect in a
chokehold might have been an unreasonable
means.
ii. To what extent can the defense apply when the merchant or
its employees pursue the suspect beyond the premises?
1. MD & majority: if the pursuit is immediate and
fresh (and still fairly close to premises), it is
permissible detention so long as it meets the other
requirements
a. If it is not immediate and there’s significant
passage of time and/or distance, then the
pursuit probably crosses the line into
“recapture” or “repossession” of property in
which the law forbids the use of any force
i. This law is designed to promote
victim of theft to use the police and
law enforcement to recover the
property or to be compensated for its
loss
(2) Consent
3. Defense of Consent:
a. A person can consent to contact that would otherwise be tortious
i. Actual consent: where the plaintiff explicitly expressed
consent verbally or in writing
ii. Apparent consent (aka implied or effective) is where
consent was indicated by the plaintiff’s conduct
1. Rule is whether the defendant was reasonable in
concluding that the plaintiff had given apparent
consent to a touching or other conduct
a. If the circumstances would make a
reasonable person believe that the plaintiff
consented to the conduct, that’s enough to
prove consent defense even if the plaintiff
claims there was no consent because it was
never explicitly expressed
2. Silence is rarely consent unless plaintiff has
consented through silence in similar circumstances
in the past
iii. Berwyn v. Austin:
1. The plaintiff’s consent to the defendant’s act is
sufficient for the consent defense, even if the
plaintiff did not consent to one or more
consequences of that act
a. If Berwyn consented to the touching the
neck, Austin would not be liable, even if
Berwyn did not consent to a broken vertebra
b. Situations that eliminate consent:
i. Lack of capacity – if the person giving consent lacks
capacity, then the fact that they say yes does not constitute
a defense to the defendant’s alleged tort
1. Minors can consent to age-appropriate contact
2. Intoxication cannot remove liability, but it can make
consent ineffective
ii. Consent is ineffective if it’s been obtained through
misrepresentation, or based on a mistake about what’s
being consented to, and defendant is aware of that mistake
1. MD & most courts:
a. Restatement §892B: if a person is induced to
consent by a substantial mistake concerning
the nature of the invasion of their interests of
the extent of the harm to be expected from
that invasion and the mistake is known to
the other or is induced by the other’s
misrepresentation, the consent is not
effective
iii. Duress – duress that negates consent must involve physical
force, a tort or crime, or a threat to use physical force or to
commit a tort or crime
iv. Consent defense will fail if the defendant exceeded the
scope of plaintiff’s consent
1. When a person consents to one form of act/conduct
but the defendant engages in a distinct form of
act/conduct
2. Doe v. Johnson:
a. If defendant knew that he/she had an STD,
but misrepresented to an imminent sexual
partner that they did not, the courts would
say that consent to sexual contact is
ineffective and that’s a battery
b. Doctrine of “mistake”: if the court and jury
found that though the plaintiff consented to
sexual intercourse, the sexual intercourse
involving transmission of an STD was of
different nature and/or extent to the conduct
that plaintiff consented, the consent would
be ineffective and defendant would have no
defense to liability
4. Necessity Defense (can only be used for torts against property)
a. Necessity is some type of emergency or disaster or that is not of
the party’s making
i. Typically raised as a defense to a tort against property
ii. Includes fires, floods, storms, terrorists or violent criminals
b. Public necessity:
i. Something that benefits the public or a large number of
people
1. Ex: blowing up a house to stop a fire from
spreading
ii. If the defense is accepted, it is complete and the defendant
will not have to pay any damages
c. Private necessity:
i. One party intrudes on the rights of another in order to
protect his or her own interest
1. Possessor loses right to oust the trespasser as well
as the right to recover money for the technical
trespass or entry onto the land
a. Possessor has the right to recover for any
ACTUAL damage to property
d. When deciding between public and private necessity  does the
decision-maker directly benefit from trespass?
i. If no  public
ii. If yes  private
EXAM:
 Argue assault if you argue battery and distinguish why one or the other or both
 Remember transferred intent
 If someone is prevented from leaving, look for harm or knowledge
 Distinguish between conversion and trespass – argue it and define it
______________________________________________________________________________
POST MIDTERM: WEEK 6 – FINAL
(3) Privileges Not Based on Plaintiff’s Conduct
Negligence (go through hypos on law scholar slides)
III. Negligence
A. Overview: Elements of a Negligence Claim
a. Duty;
b. Breach;
c. Causation;
i.
Factual/but for AND legal/proximate
d. Actual damages
i.
Unlike intentional torts where only nominal damages could be awarded
B. Duty
a. Definition: exercise the ordinary care a reasonably prudent person would exercise
under the circumstances
i.
Circumstances will change what degree of duty is owed
ii. Foreseeability matters
iii. Questions to ask: does the defendant owe a duty to the plaintiff? What is
the duty owed?
b. General Duty of Care
i.
Whenever A engages in some activity, A owes a duty to take reasonable
care in performing that activity, and that duty is owed to any other
person who might foreseeably be harmed if A was unreasonably
careless.
ii. Courts insist the reasonable care standard applies to all negligence cases
1. Certain situations in which standard of reasonable care is not taken
into account:
a. Sudden emergency: In MD & other states, this jury
instructions tells the jury that a person confronted with a
sudden and unexpected peril, not resulting from that
person’s own negligence, is not expected to exercise the
same judgment and prudence the law requires of a person
in calmer moments.
i. The person must still act as a reasonable person
under the same conditions would
b. Jury Instruction in MD  can be given when:
i. Suddenness
ii. Some action was taken in response to the
suddenness
iii. Defendant didn’t create or contribute to the
emergency
1. Drivers must be prepared for the sudden
appearance of obstacles, including
pedestrians in the road and the other cars at
intersections
2. Defendant is not liable for an unavoidable
accident
2. Negligence law does/does not take into account reasonable care
standard:
a. Allowances for people with physical disabilities 
standard as what a reasonable person with a like disability
would do under the circumstances
i. Mental disabilities are not taken into account
1. No consideration for lack of intelligence,
ignorance, excitability, or accident
proneness
ii. Voluntary intoxication standard of care is the same
standard as a sober person
b. “Superior abilities” – expertise, training, knowledge,
education, better-than-average physical ability
i. These should be taken into account by the jury
ii. A reasonable person should use all abilities when
they are engaging in an activity and dealing with
situations that arise
c. Statutory and Regulatory Standards
i.
Minors – for children engaging in children’s activity, the law does say
the child should be expected to exercise only the care and judgment of a
reasonable child of that age, maturity, intelligence, and experience.
1. If a child engages in an adult activity, such as driving a vehicle,
then the law holds the child to the standard of a reasonable adult
ii. Statutory Violations:
1. Two conditions that must be met for violation of statute to be
considered relevant to standard of reasonable care:
a. The harm that occurred was the type that the statute was
designed to prevent; and
b. The injured part was in the class of persons to be protected
by the statute
2. In some states (such as NY), a violation of a statute can be treated
as negligence per se, meaning it proves by itself that the party
breached the standard of reasonable care
a. Negligence per se: statute established the standard of care,
so the violation of the statute is negligence per se – plaintiff
only needs to prove violation of the statute to show breach
of standard of care
i. if plaintiff establishes that a statute exists and the
statute was violated, this is negligence per se
b. In MD and majority of states, violation of the statute can
be presented to the jury as evidence of negligence  it is
not enough to stand alone, though
c. Statute can show DUTY, violation of statute shows
BREACH which together create NEGLIGENCE PER
SE
3. MD NOT NEGLIGENCE PER SE JURISDICTION:
a. Plaintiff must prove:
i. Statute/regulation exists;
ii. It was violated;
iii. The injury must be of the type the statute was
designed to prevent; AND
iv. Plaintiff belongs to the class of persons the statute
was designed to protect
4. Statute Violations EXCUSED:
a. EXCUSED violation of statute is not negligence per se
b. Incapacity:
i. Same standard of care but sudden physical
incapacitation that is not foreseeable is a
circumstance taken into account when applying the
reasonable person under the circumstances
1. Loss of consciousness and/or loss of
physical control
ii. If sudden physical incapacitation is alleged by
tortfeasor, defendant must prove it happened and it
was not foreseeable
c. Lack of knowledge of the need to comply (does not mean
ignorance of the statute but rather factual knowledge about
the need to comply);
d. Sudden emergency;
e. Impossibility;
f. Greater risk from compliance than noncompliance
5. MD’s use of statute in liability:
a. Adult, who knowingly and willfully allows an underage
person at their residence to consume alcohol, and does
nothing, and then shortly afterwards the underage person
injures or kills another by driving intoxicated, the adult can
be held liable for negligence for those harms
i. Based on that statute, it is illegal to allow underage
persons to consume or possess alcohol in one’s
residence
d. Standards of Care:
i.
Physical Condition DUTY: ordinary care is the care a reasonably
prudent person with a like disability would have exercised under the
same or similar circumstances
1. Conduct must be reasonable in light of the knowledge of the
disability
2. Old age is NOT an infirmity on its own, but can consider physical
impairments
3. Voluntarily intoxication: held to same as sober person
ii. Mental Disability DUTY: duty is the standard of care a reasonably
prudent person would exercise under the circumstances
1. Courts do not recognize sudden mental incapacitation
2. Mental disability if not taken into account when applying standards
of care
iii.
Sudden Emergency Doctrine:
1. A person confronted with a sudden or unexpected peril is not
expected to exercise the same standard of care the law requires of a
person in calmer moments.
a. Jury Instruction in MD can be given when:
i. Suddenness
ii. Some action was taken in response to the
suddenness
iii. Defendant didn’t create or contribute to the
emergency
2. Unavoidable Accident – MD doesn’t give instruction because
it’s too pro-defendant
iv.
Sudden Incapacitation DUTY:
1. Same standard of care but sudden physical incapacitation that is
NOT FORESEEABLE is a circumstance taken into account when
applying the reasonable person
a. Defendant must prove that the incapacitation happened and
it was not foreseeable
v.
Superior Knowledge/Ability/Expertise DUTY:
1. Same standard of care but superior knowledge, etc. is taken into
account when applying the reasonable person
a. A reasonable person will use all the knowledge, ability,
expertise they have when dealing with a risk
e. Duty of Care – Based on Relationships
i.
Duties owed by landowners or possessors:
1. MD & half of states: duty depends on status of categories of
invitee, licensee, and trespasser
a. Invitees: duty owed is to exercise reasonable care under the
circumstances to avoid harm to invitees
b. Licensees (social guests) & trespassers: duty is general to
avoid willfully, wantonly, or recklessly causing injury
i. If landowner discovers the individual in peril, the
landowner owes a duty of warning or doing
whatever else a reasonable person would do to save
them from the peril
ii. If landowner knows that there are frequent
trespassers on their property and has no objected to
them, the landowner owes a duty to warn such
trespassers of hidden risks or any new risks in that
property
1. Criminal trespasser standard is just
“reasonableness under the circumstances”
and the landowner owes no duty to warn or
anything else
2. “open & obvious danger rule”
ii.
a. Landowners have no duty to warn persons in any of the
status categories about open and obvious risks
i. Rule does not apply when the landowner did or
should have anticipated/foreseen that the plaintiff
and persons like plaintiff would not notice open
risks because they’re distracted, intoxicated, or
otherwise less than 100% observant
3. Recreational use statutes:
a. Limit landowner liability by saying landowners are not
liable to non-paying persons on the land for recreational
activities
Duties of Medical & Other Professionals:
1. Important questions (1)What duty is owed? (2)How can plaintiff
prove breach of that duty?
2. Medical Malpractice:
a. Standard of care is the medical standard of care and that is
to be established by expert testimony
i. Testimony has to establish generally accepted
practices, not merely personal preferences
ii. The duty is what’s the accepted practice in the
profession or “advocated by a considerable number
of recognized and respected professionals in that
area of expertise
b. Defenses to Medical Malpractice:
i. Express assumption of risk possible
1. Patient agrees to a release orally or in
writing
2. Contributory negligence (ex. Failing to
follow doctor’s orders)
ii. Implied AOR not possible in MD
iii. Good Samaritan statutes can excuse liability IF:
1. The assistance or medical care is provided
without fee/compensation; AND
2. At the scene of an emergency and treatment
in transit to a medical facility
3. Generally Accepted Practices:
a. Old rule: strict locality rule
i. The plaintiff had to establish the standard of care
within the same geographic community
ii. Modified locality rule: standard that doctors in the
same or similar locality would follow
b. MD and other states: national medical standard
i. Local customs and practices no longer set the
standard, but certain local conditions such as
availability of technology and resources may be
taken into account
iii.
4. MD: Good Samaritan statutes:
a. Protect doctors from liability when they treat people in an
emergency
b. Scope depends of the language of the statute
5. Other Professions
a. Held to professional standard
i. Architects, engineers, accountants, lawyers, nonmedical professionals (nurses and dentists)
Duty to Protect Against Third Persons
1. General Rule: There must be some sort of special relationship to
give rise to duty
a. Two types (each sufficient to create a duty to protect)
i. Defendant may have a special relationship with the
plaintiff; OR
ii. The defendant may have a special relationship with
the third person harmdoer
b. Three Levels of Action Possible
i. Lowest: duty to warn
ii. Medium: duty to take action to reduce the risk –
e.g., better lighting in the parking garage, security
guards
iii. Highest: duty to control a third person’s conduct
c. Types of relationships that impose a duty to act:
i. Common carrier-passenger
ii. Innkeeper guest
iii. Business inviter – invitee
iv. Voluntary custodian protectee
v. Existence of one of the relationships has typically
been the basis for imposing an affirmative duty to
act where one would not ordinarily exist
vi. Test in determining duty:
1. MD: closest to the “prior similar incidents”
approach – history of past crimes on or near
the premises, taking into account nature,
extent, frequency, similarity of crimes
2. Specific harm rule: must be aware of
specific imminent harm about to befall
patrons  mostly rejected as too narrow
3. Totality of the circumstances test: considers
the prior similar incidents factors plus other
factors that tend to show a risk to patrons 
too broad
4. Balancing test: balances foreseeability (from
totality of circumstances) against the burden
to the defendant. High foreseeability of
harm leads to high burden, and vice versa
5. Other factors:
a. If defendant creates or enhances the
risk
b. If defendant knows of an imminent
risk
d. Defendant’s Duty Derives from Defendant’s Relationship
to Harmdoer (3rd party)
i. There is a duty for a psychotherapist to warn when a
patient threatens harm to a specific plaintiff
1. Because of the special relationship between
the therapist and the patient
2. If no threat to a specific person, there is no
duty
2. NO DUTY TO ACT
a. Generally, there is no duty to act to help others
i. Overview of Exceptions:
1. Special relationship between plaintiff and
defendant
2. Defendant put plaintiff in harm’s
way/creating a continuing risk to others
3. Gratuitous services
4. Companions on a social venture (duty to
obtain medical assistance and/or notify
someone else about companion in peril)
5. Statutory exceptions:
a. Duty to act when person is in grave
danger and minimal risk to defendant
b. Duty to report crime (MD not one of
the states)
b. Misfeasance – distinction between negligence failure to act
c. Nonfeasance – inaction where there is no duty
i. Ex: a claim when driving a vehicle and failing to
brake for an obstacle is nonfeasance when in fact it
is usually looked at is possible misfeasance during
the activity of driving
d. No duty to act, but duty to assist:
i. When the defendant causes harm to another person
1. If I cause harm to another, whether
innocently or negligently, that creates a duty
for me to render aid to the other person. If I
cause the injury innocently, I won’t be liable
for the original injury, but if I fail to render
aid, then I will be liable for any aggravation
of the injury
e. Second exception to not duty to act: Gratuitous Services
iv.
i. Another way of saying this is that once you begin to
render aid, you must use reasonable care
Governmental Liability
1. Sovereign Immunity – the government cannot be sued
a. US GOV’T & MD AND MOST STATES: waived
immunity for themselves and local governments by statute
i. This waiver has been interpreted as meaning that
the police cannot be sued for failing to protect
residents, or even non-paid informants.
b. The federal gov’t & most states can be sued for harms
caused by “ordinary” negligence, such as slip and fall cases
or vehicle accidents
EXAM:
 When assessing duty, define the standard of care and circumstances that matter
o Mental disability NOT relevant circumstance
o Physical disability IS relevant circumstance
o Sudden emergency IS relevant if tortfeasor did not cause/contribute to it
o Superior knowledge, ability, expertise ARE relevant circumstances
 Look out for sudden emergency
o Was it sudden?
o Did tortfeasor contribute or cause the emergency
 Look out for sudden incapacitation
o Is it mental or physical? Only one counts
o Was it foreseeable?
C. Breach of Care
a. Assessing Reasonable Care by Comparing Risk and Costs
i.
Deciding whether a defendant has breached the standard of care involves
balancing the risk of harms caused by a defendant’s conduct against the
burden to a defendant of refraining from that conduct or carrying out
that conduct in the alternative way(s) that the plaintiff contends would
be more reasonable
1. The more obvious a risk, the less a defendant is required to
eliminate that risk
2. “burdens” that are relevant include financial costs to the defendant
and non-financial costs that include greater effort, more time
consumed, loss of opportunities, greater risk to the defendant and
others
3. Hand Formula: If B (burden) > P (probability) x L (loss), then
there is no breach
a. If B < P x L, there is a breach.
4. Considerations for breach:
a. Foreseeability of injury
b. Extent of risks
c. Likelihood of risk causing harm
d.
e.
f.
g.
Alternatives to proposed conduct
Cost
Social value of the activity
Benefits and costs to other people (not plaintiff and
defendant)
ii. Walmart v. Wright: evidence that a defendant departed from its own
internal safety policy or practice does not prove that the defendant
breached the standard of reasonable care, but it is admissible as a fact to
be considered
iii. Evidence of one or more “subsequent remedial measures” a defendant
took after a plaintiff was injured is generally not admissible because of
the fear that will deter fixing things that have caused injury
iv.
Proving Breach:
1. Need to show what defendant did or did not do that breached the
standard of care; the accident’s existence alone is not sufficient
evidence of negligence (except in RIL)
a. Direct evidence: testimony from witness who saw, heard,
or touched subject
1. Evaluate the inference to see if failed to
meet standard of care
b. Circumstantial evidence: non-direct evidence; fact(s) from
which someone can logically deduce/draw inference that
defendant did something
i. Two – step process:
1. Infer from the evidence
2. Evaluate the inference to see if failed to
meet standard of care
2. Juries will usually decide if breach occurred
b. Act or Omission of Defendant:
i.
Plaintiff must be able to point to some act or omission by the defendant
or some alternative course of conduct that the defendant should have
taken
1. Whom do I sue?
2. How can I prove this defendant breached the standard of care?
3. Need to know how what the defendant did or did not do fell short
of what a reasonable person would do
EXAM:
 Look out for minors
o Define what age-specific circumstances matter when defining the standard of care
o Adult activity involved?
 Look out for statutes/ordinances/etc
o Address minority rule of negligence per se
o Address majority rule of it being evidence of negligence-in-fact (MD!)
o Argue over type of harm and victims statute’s intended to protect
c. Industry Custom:
i.
RELEVANT BUT NOT CONCLUSIVE
ii. Doesn’t conclusively establish the standard of care, but rather is
evidence of the standard of care
1. What is ordinarily done may be evidence of what ought to be done
2. Compliance with an industry standard could still be a breach of
ordinary care
3. Party claiming negligence can use industry custom as a sword to
help establish the standard of care
4. Defendants may also use compliance with custom as a shield, to
support that they met the standard of reasonable care
5. T. J. Hooper: demonstrates that compliance with industry custom
is not conclusive that the standard of care is met because the entire
industry custom may fail the standard of reasonable care
d. Res Ipsa Loquitur (RIL – abbreviation CAN be used on exam)
i.
Conditions a plaintiff must show in order to be entitled to RIL
instruction:
1. The act is one that would not ordinarily occur in the absence of
negligence
2. It is more likely than not that the accident was caused by the
defendant or one or more of its agents.
a. To meet this condition, a plaintiff may show that causes of
the accident other than the defendant’s negligence have
been largely ruled out (such as conduct of the plaintiff)
b. Giles decision: injury to elevator operator
i. The old, no longer used, definition of that
condition was that the defendant had “exclusive
control” over the instrumentality that caused injury
and/or other harm to the plaintiff
ii. It’s still required that the defendant had some
control, but that control no longer has to be
conclusive.
iii. BOTTOM LINE: for the “defendant had control”
condition, some use of an instrumentality by the
plaintiff or others will not destroy the degree of
defendant control necessary for RIL to be
applicable
iv. MD: plaintiff must show that it is more likely than
not that it was the DEFENDANT’S negligence, and
not someone else’s, that cause d the accident and
the harm
ii. Before RIL, court requires that someone conduct a reasonable
investigation of the cause or causes of the accident
1. Warren v. Jeffries: the above rule is demonstrated
a. Neither the plaintiff nor anyone else inspected the car to
determine whether some defect was the reason the car
started moving
b. If anything happens that makes it practically impossible for
the plaintiff or anyone to determine the cause of the
accident, then the requirement of investigation prior to
using RIL will not apply.
EXAM:
 Do your intentional and regular negligence analysis, then think about RIL as a backup
o Something went wrong and you don’t know how
D. Causation
a. Factual causation (cause in fact)
i.
But-for test: if the injury would not have occurred BUT FOR the
defendant’s breach of duty, then causation is satisfied.
1. Judge & jury compare what did happen (given that defendant’s
negligent conduct occurred) with what would have happened if
defendant had not acted unreasonably.
ii. Multiple Causes:
1. Necessary Causes: both parties did negligent act that was
necessary to cause the injury
a. A runs a red light, B turns illegally, both crash and hurt C
2. Sufficient Causes: defendant’s negligence was sufficient to cause
the plaintiff’s injury, but there was also another cause that was
sufficient to cause plaintiff’s injury too
a. A starts a fire and B starts a fire. Both fires reach C’s house
and burn it. Fails for but-for causation because the other
fire would’ve burned it down regardless
3. 2 or more persons causing separate or divisible injuries  each
tortfeasor will be liable for the harms that tortfeasor caused and no
more
4. INDIVISIBLE injury caused by multiple actors but we don’t know
which defendant caused which injury
a. Apportionment statute determines what share of the
damages each defendant must pay
b. Landers: when two actors acting independently are each the
BUT FOR cause of an indivisible injury, and it is
impossible to prove the amount of harm actually caused by
each actor, we will say all defendants share liability for the
entire injury, even though either one could have caused the
whole thing
i. Substantial Factor test – if jury finds that a
defendant’s breach of duty was a substantial factor
causing the injury, then factual causation will be
satisfied regarding the defendant
1. “gatekeeping function” – only persons
whose negligent conduct was a “substantial
factor” in causing the harm to the plaintiff
are found to be factual causes of that harm
5. Alternative to “but for” causation:
a. Summers v. Tice: applies when two or more defendants
engaged in substantially similar negligent acts, and only
one defendant actually caused injury to the plaintiff, but the
plaintiff cannot determine which defendant was the one
who caused the injury
b. This standard says the burden of proof shifts to each
defendant to prove it was not the cause of harm, and any
defendant who cannot prove that will share liability for the
harm
EXAM:
But for test: but for the defendant’s negligence, the plaintiff’s injury wouldn’t have resulted
If true – then factual causation is proven (includes necessary causation)
If not, decide if substantial factor test applies or Summers v. Tice rule
Sub. Factor Test: is the defendant’s conduct a sub. Factor If yes, then factual
causation is proven and includes sufficient causation
Summers v. Tice Rule
If no but-for, no substantial factor, and no Summers rule applies, FACTUAL CAUSATION IS
NOT PROVEN AND NO RECOVERY ALLOWED
b. Proximate Cause (scope of liability)
i.
Definition:
1. the harm resulted from risks that made the defendant’s conduct
negligent in the first place
2. that in which, in a natural and continuous sequence, unbroken by
any efficient intervening cause, produces an injury and without
which the injury would not have occurred
ii. Guideposts:
1. Foreseeability:
a. Berry v. Sugar Notch: demonstrates first “guidepost” of
proximate cause  the harm that occurred was of the same
general nature as one of the foreseeable risks created by the
defendant’s negligence
b. Just because something is POSSIBLE does not mean that
it is foreseeable
2. Zone of Danger
a. Palsgraf v. Long Island Railroad Co.: demonstrates another
“guidepost” of proximate cause  that the harm must
occur to someone in the same general class of persons
within the “scope of risk” created by defendant’s
negligence
b. Overview:
i. Unforeseeable type of harm: NO PROX CAUSE
iii.
iv.
ii. Unforeseeable person: NO PROX CAUSE
iii. Unforeseeable manner in which harm occurred:
PROX CAUSE EXISTS as long as the type of harm
resulting and type of person harmed was
foreseeable
iv. Unforeseeable extent of harm: PROX CAUSE
EXISTS (extended liability)
3. Rescue Doctrine: another “guidepost” of proximate cause  it is
foreseeable to a defendant who causes foreseeable harm to a
person, or puts a person at risk of suffering harm, that some rescuer
might attempt to help that harmed or at-risk person, and be injured
in the attempt  danger invites rescue
a. In other words: rescuer can recover from defendant whose
negligence prompts the rescue
4. Larrimore: rat poison exploded when it was near a coffeemaker
a. Proximate cause application:
i. Guidepost 1: the harm that occurred (an explosion)
was not the kind of harm the defendant could
foresee by the negligent act of putting poison near a
coffeemaker, because the foreseeable harm was
poisoning someone
ii. Guidepost 2: because the plaintiff was not poisoned
but rather injured by an explosion, the plaintiff
failed proximate cause as plaintiff was not in class
of persons who could foreseeably be harmed by
defendant’s negligence
b. Rule: The conditions that must be met for violation of a
statute to be relevant to the breach element are nearly
identical to the first two guideposts for proximate cause
5. Fourth “guidepost”
a. Defendant is liable for foreseeable injury/harm, even in an
unforeseeable manner
i. If the expected injury is the injury that occurs, then
it doesn’t matter whether that injury occurs in an
unusual fashion
1. UNLESS the manner in which the injury
that occurs shows that it was the result of a
different risk than the risk created by the
defendant’s conduct
Extended Liability
1. When the extent of the harm is greater than what defendant would
expect from injuries the defendant could reasonably foresee from
their conduct, the defendant is liable for all foreseeable and
unforeseeable injuries
2. “thin-skull” rule
Intervening Forces  revisit this class, Oct. 26
Most Important 3:
All relate to how
foreseeable it would be to
a reasonable T1 that its
negligence would lead to a
T2 causing harm to the
plaintiff
1. Consider the causal chain and proximate cause
a. T1: potential defendant who breaches a standard of care
T2: another negligent potential defendant
T1 created an opportunity for T2 to more directly cause
harm to victim/plaintiff
2. Considerations Important in Determining Whether Intervening
Force is Superseding (RS § 442)
a. The fact that its intervention brings about harm different in
kind from that which would otherwise have resulted from
the actor’s negligence
b. The fact that its operation or the consequences thereof
appear after the event to be extraordinary rather than
normal in view of the circumstances existing at the time of
its operation
c. The fact that the intervening force is operating
independently of any situation created by the actor’s
negligence, or, on the other hand, is or is not a normal
result of such a situation
d. The fact that the operation of the intervening force is due to
a third person’s act or to his failure to act
e. The fact that the intervening force is due to an act of a third
person which is wrongful toward the other and as such
subjects the third person to liability to him
f. The degree of culpability of a wrongful act of a third
person which sets the intervening force in motion
3. Considerations in Determining if T2’s negligence was foreseeable
to T1  such that it doesn’t break T1’s chain of causation
a. The actor at the time of his negligent conduct should have
realized that a third person might so act, or
b. A reasonable man knowing the situation existing when the
act of the third person was done would not regard it as
highly extraordinary that the third person had so acted, or
c. The intervening act is a normal consequence of a situation
created by the actor’s conduct and the manner in which it is
done is not extraordinarily negligent
4. Criminal Acts
a. Independent actions that are within the scope of risk
created by T1’s conduct
i. T2’s criminal act will not cut off T1 from being a
proximate cause of harm to a plaintiff
1. Ex: T1 landlord is negligent regarding
access to keys to tenants’ apartments and T2
commits crimes against one or more tenants
b. For subsequent criminal act to break the causal chain, it
must be:
i. Independent of original act
ii. Adequate by itself to bring about the injury
iii. Not reasonably foreseeable
5. Termination of Risk
a. Situation in which T1 argues that T2 is solely liable
because the incident with T1 had concluded before the
incident with T2 began
b. Rule: once plaintiff reaches a position of relative safety,
then T1’s responsibility terminates and T2 becomes the
sole liable party
EXAM:
- Start with “but-for” test and only when there are multiple negligent potential defendants and
“but-for” seems like it might unfairly prevent plaintiff from recovering against any defendant,
should you consider using the alternative substantial factor or Summers alternative tests for
factual causation
Plaintiff’s burden to prove both factual cause and proximate cause
E. Damages – Final Element of Negligence
a. Types:
i.
Compensatory damages if plaintiff suffered physical/emotional harms or
harms to property
1. Punitive damages in these instances are rare and meant to punish
the defendant for bad conduct
2. Economic: includes things like lost income, medical expenses and
damage to property
3. Non-economic: include things like pain and suffering, and loss of
enjoyment of life
4. MD: half of the states, including MD, have statutes placing
maximum caps on non-economic damages
b. Divisible/Indivisible Harm
i.
When it can be determined which tortfeasor caused which harm, the
tortfeasor whose action came later only pays for the damage that they
specifically caused
ii. When two or more defendants combine to cause indivisible harm, all
defendants will be held jointly and severally liable
1. Plaintiff can get their damages from any one defendant, or all the
defendants, or any number in between
iii. When Plaintiff can get all damages from one tortfeasor or less than all
tortfeasors, the Maryland Uniform Contribution Among Joint TortFeasors Act applies
1. This statute allows the defendants who paid damages to the
plaintiff to get contribution from the other tortfeasors who harmed
the plaintiff
2. If the damages are indivisible, T1 could get a “pro rata” share of
the plaintiff’s damages, meaning 100% of damages divided by # of
tortfeasors
c. Collateral Source Rule:
i.
Provides that the damages a defendant must pay are not reduced by
payments the plaintiff already received from medical insurance or other
sources for the harms
1. Insurance companies and others who paid for plaintiff’s expenses
caused by defendant’s negligence will be reimbursed by the
plaintiff
d. Participation in Major Crimes
i.
Plaintiff can’t recover for harms caused by negligence if their injury
came about from participation in major crimes
1. Bars claims in both contributory and comparative negligence states
2. Minor crimes do not apply, such as traffic violations
F. Defenses to Negligence
a. Overview Defenses:
i.
Rebut any one of more element (duty, breach, causation, damage)
ii. Affirmative defenses:
1. Contributory negligence (in MD this is a complete bar to the
claim)
a. Prove the plaintiff was negligent
b. Must establish all 4 elements
2. Comparative negligence (46 states)
a. Pure or Modified
iii. Plaintiff was participating in a major crime
iv.
Assumption of Risk
b. In MD & 3 other states, defendants can raise CONTRIBUTORY
NEGLIGENCE to completely bar the plaintiff’s claim
i.
Defendants prove contributory negligence through the same elements
are plaintiffs prove negligence
ii. Exceptions to Contributory Negligence:
1. “last clear chance” doctrine: provides that when plaintiff is in a
position of peril, even one cause by their own negligence, and the
defendant discovered or should have discovered the plaintiff’s peril
and had the last clear chance to avoid it, then the plaintiff’s CN
does not bar recovery
2. CN is not a defense to intentional or reckless tortious conduct by a
defendant
3. In wrongful death cases, the deceased plaintiff is presumed to have
acted in a way to save his or her own life
a. Difficult to prove CN because it takes considerable
evidence to overcome that presumption and such evidence
is rarely available
c. In 46 states, COMPARATIVE NEGLIGENCE is the rule
i.
d.
Pure CN: plaintiff can recover some damages, but the damages are
reduced by the percentage of fault the jury assigns to the plaintiff for the
accident and harms
ii. Modified CN: if the plaintiff’s fault is less than 50%, then damages are
reduced by percentage of fault
1. If plaintiff’s fault is above 50%, plaintiff is barred from recovery.
Assumption of Risk Defense
i.
Contractual A of R:
1. Courts will not automatically enforce disclaimers and releases
agreed to by the plaintiff, but will consider if consistent with public
interest
2. A contractual release or waiver can only be applied to negligence
if it releases a defendant from liability for negligence in
conspicuous and unequivocal terms
a. Including mentioning that defendant is released from
liability even from its negligence or unreasonable conduct
ii. Implied A of R:
1. Defendant must prove that the plaintiff knew and understood the
risk they were confronting and did so voluntarily
2. IMPLIED PRIMARY:
a. The risk(s) are inherent in the activity that plaintiff is
engaged in
i. Ex: sports and recreational activities
b. STANDARD: a participant assumes the risks inherent in
the sport or activity, but that person does not assume
increased risks that are caused by negligence and that are
not within the ordinary bounds of the sport or activity
i. Key is not whether the rules of the sport are violated
but what participants would reasonably understand
to be within the ordinary bounds of the sport or
activity
ii. Applies to participants AND spectators
c. Rule: can cover one or more risks a plaintiff was retained
and paid to deal with
d. MD: when a plaintiff is proven to have assumed risk(s)
inherent in the sport or recreational activity, that serves as a
complete defense
3. IMPLIED SECONDARY:
a. Negligence by a defendant creates one or more risks that
the plaintiff afterwards faces
i. This is a complete bar in MD
ii. Ex: trying to fix a gas leak knowing the risk of an
explosion
b. 46 comparative negligence states do not separately applied
implied A of R as a complete defense
i. These states only consider whether plaintiff was
reasonable to take the risk
c. MD: only state where currently its certain that implied
secondary assumption of risk is a complete defense even if
the plaintiff was reasonable in taking the risk
IV. Other Torts Issues
A. Vicarious Liability
a. Definition: Doctrine under which persons who themselves have not committed
any tort can nonetheless be held liable for the negligent or otherwise tortious
actions of their agent
i. Ex: Employer as the principal and an employee as their agent
1. General rule: persons who retain independent contractors are not
liable for negligence or other torts committed by contractors
b. Does vicarious liability apply?
i. Determine if a principal/agent relationship exists
1. Relationship can be created even by volunteer activities if the
volunteer has submitted to the principal’s control
2. If NO relationship, then there is no vicarious liability
3. If there IS a relationship:
a. Ask whether, when the agent engaged in allegedly tortious
conduct, the agent was acting within the scope of their
employment or agency
i. If yes, then employer or principal is vicariously
liable for the tortious conduct
1. Activity is within the scope if it is activity
that, at least in general, is authorized or
expected by the employer or principal, and
the employee or agent was acting within
authorized time and space limits
ii. Employee or agent’s action must have been
motivated, at least in part, by a purpose to serve the
employer’s or principal’s interests
iii. If NOT within the scope, there is no vicarious
liability
1. NOT within the scope:
a. Driving to and from work (even if
tired due to work’s long
hours/strenuous requirements)
b. Frolic: police leaving a kid from
Baltimore City in Howard County
with no shoes
c. If vicarious liability DOES exist, the plaintiff still has to prove the agent
committed a tort, proving all elements of the tort
i. Such as for negligence, the plaintiff must prove duty, breach, factual and
proximate causation, and actual damages
B. Emotional Harm
a. Emotional harm damages can be awarded in cases where negligence resulted in
physical injury
i. MD & most states: dropped the old “impact” requirement and provide
that in negligence cases, plaintiffs can get emotional harm damages even
when there is no physical injury or contact
ii. MD: for a plaintiff to recover for emotional harm, there has to be a
physical manifestation of the emotional harm
1. Physical manifestation: anything capable of objective
determination, e.g., insomnia, withdrawal from socialization, etc.
b. Bystander Emotional Harm
i. MD & 10 other states: require that the plaintiff have been in a “zone of
physical danger” to recover emotional harm damages for negligence
ii. A majority of states (not MD) follow Dillon decision, which established
that if plaintiff witnessed negligently caused harm to close relatives like
children or spouses, the plaintiff could recover emotional harm damages
even if the plaintiff was not themselves in a zone of physical danger
c. Emotional Distress
i. MD: does not recognize a cause of action for negligent infliction of
emotional distress
1. when the defendant’s negligent conduct never put plaintiff in any
physical danger, but in some other way caused the plaintiff to
suffer emotional distress, MD courts will dismiss that claim
2. However - If there is a physical accident or incident regarding
which the plaintiff was in the zone of physical danger, Maryland
courts permit plaintiffs to recover for emotional harms from that,
even if plaintiff is not physically injured
ii. Intentional Infliction:
1. Intentionally or recklessly – disregard of a substantial probability
of causing severe distress
2. A does something to B that causes emotional distress to C
a. Plaintiff C must show
i. Extreme and outrageous conduct DIRECTED
TOWARD B (from “such conduct”)
ii. Intentionally or recklessly caused
iii. Severe emotional distress for plaintiff C
iv. That C was present at the time AND
v. Either (5) that C is a member of B’s immediate
family OR that the distress resulted in bodily harm
C. Wrongful Death
V. Strict Liability
A. Trespass and Nuisance
B. Products Liability