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MBE Torts Outline

Intentional Torts
A. Notes
1. Ignore hypersensitivity of plaintiffs
2. No incapacity defenses
3. Transferred intent applies different torts or different plaintiffs
4. Except for IIED, no need to show damages – nominal damages are enough
B. Battery
1. Elements
i. Intentional harmful or offensive contact
ii. Of another or anything connected to that person
2. Offensive – unconsented contact
C. Assault
1. Elements
i. Intentional apprehension of imminent harmful or offensive contact
2. Empty threat – enough if Plaintiff does not know threat is empty, apparent
3. Words alone are not enough, not immediate
4. Threatening move is enough, unless words negate the conduct or the
D. Trespass to Land
1. Elements
i. Intentional entering land of another
ii. Negligent trespass
a. Damage land
2. Notes
i. Knowledge that Defendant crossed boundary line is not required
ii. Intent required– Defendant wants to go there
iii. Throwing something tangible on land counts
iv. Land – includes air above and land below, up to a reasonable distance
E. Trespass/Chattel
1. Elements
i. Intentional interference with others property
2. Damage
i. Usage
3. Notes
i. Modest interference
ii. Mistake over ownership is not a defense
F. Conversion
1. Elements
i. Intentional converting others property
2. Damage
i. Entire value
4. Notes
i. Severe interference/damage
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ii. Mistake over ownership is not a defense
G. False Imprisonment
1. Elements
i. Intentional confinement in a bound area
ii. No means of escape
a. The escape has to be reasonable and the Plaintiff must reasonably be
able to find it
b. Escape cannot be hidden, dangerous, disgusting, or humiliating
iii. Person knows they are being confined or are harmed
2. Words are enough, the threat of what may happen if Plaintiff leaves the room
is enough
3. Omission enough if there is a pre-existing duty
4. Exception
i. Shopkeeper privilege
a. Reasonable belief person is stealing,
b. Can detain for a reasonable amount of time and in a reasonable manner
H. Intentional Infliction of Emotional Distress
1. Elements
i. Intentional or reckless
ii. Extreme or outrageous conduct
iii. that causes severe emotional distress
2. Direct theory – two people in the hypo
i. No Physical harm is required
3. Bystander theory – three people in the hypo
i. One
a. If bystander is a close family member
b. The defendant knows the bystander is present, and
c. The bystander suffers emotional distress
ii. Two
a. Bystander is not a close family friend, and
b. Suffers physical harm
4. Notes
i. Outrageous – exceeds all bounds of decency tolerated in a civilized
ii. Mere insults are not outrageous; insults are different than sexual or vulgar
iii. Guidelines for outrageous conduct
a. Conduct is continuous or repetitive
b. Defendant is a common carrier or inn keeper
c. Plaintiff is a member of a fragile class
1. Small children
2. Elderly people
3. Pregnant woman (must know woman is pregnant)
d. If Defendant knows that Plaintiff has a particular sensitivity and
attacks that sensitivity – conduct is outrageous
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iv. Severe distress – can be shown in any way, or can be negated by the hypo
(the severeness)
Defenses to Intentional Torts
A. Consent
1. Only person with valid legal capacity can consent
2. Diminished capacity – can only consent to certain things
3. Express consent
i. Exception
a. Consent obtained by fraud or duress
4. Implied consent
i. Through custom or usage
ii. Defendant’s reasonable interpretation of Plaintiff’s conduct
5. Consent has a scope
B. Protected privileges
1. Self Defense – reasonable under the circumstances, only use equal amount of
2. Defense of others
3. Defense of property – never use deadly force
4. Threat coming from the Plaintiff and Defendant takes preventive measures
5. Elements
i. Proper timing
a. Intentional tort is imminent or in progress – happening during real
time, no pre-emption
ii. Accuracy
a. Reasonable belief that the threat is genuine
b. Can make a reasonable mistake
iii. Reasonable or necessary force
a. Rule of proportionality
b. In life threatening situations can use deadly force, no duty to retreat
(stand your ground)
c. Cannot use deadly force to defend property or deadly mechanical
C. Necessity
1. Public – absolute defense
i. Defendant commits property tort in an emergency to protect the
community as a whole
2. Private – partial defense
i. Defendant commits property tort in emergency to protect an interest of his
ii. Defendant is obligated to pay for any harm he actually committed
iii. If no damage, technical tort does not exist cannot get nominal nor punitive
iv. Can enter and remain while the emergency is ongoing
A. Negligent infliction of emotional distress
1. Elements – direct theory, two people in the hypo
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i. Negligent conduct
ii. Plaintiff is in the zone of danger
iii. Causing sever emotional distress, and
iv. Physical harm
2. Bystander theory – three people in the hypo
i. Close family member of plaintiff (nuclear family),
ii. Physically there, and
iii. Suffers emotional distress
3. Business relations theory
i. Careless performance will lead to severe distress – highly foreseeable
a. i.e. laboratory getting wrong results for HIV disease
B. Handling a dead body
1. Elements
i. Negligently handling of a dead body,
ii. Which causes person emotional distress
iii. Physical harm is not required
C. Negligent Misrepresentation
1. Elements
i. Misrepresentation by the defendant
ii. In a business or professional capacity
iii. Breach of duty to the Plaintiff
iv. Causation (actual reliance on misrepresentation)
v. Justifiable reliance
vi. Damages
D. Negligence
1. Elements
i. Duty – reasonable prudent person
a. Not owned to everyone, only to foreseeable plaintiffs in the “zone of
1. Rescuers are always foreseeable plaintiffs, danger invites rescue
2. Two times to deviate from objective standard
I. Additional skill or knowledge
II. Defendant’s physical characteristics – have to be relevant
b. Special standards
1. Professionals (individuals with elevated education/expertise) – act
the same as people with the same education
I. Need expert to testify
II. Standard – average care of members of the same profession
III. Doctors – duty to get informed consent, Plaintiff can only
recover if the risk they failed to inform on materializes
2. Children – act as other children with same age and maturity
I. Very small children, under 5 years old, have no duty
II. If engaged in adult activity, operating a motorized vehicle,
treated as adults
3. Parents – duty to control kid if know or should kid will cause harm
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4. To aid – no duty to aid/help; however, if you aid and try to help
then you owe a duty of reasonable care
5. To aid when special relation
i. Employer – employee
ii. Carrier – Passenger (air, bus, etc.)
iii. Innkeeper – guest
c. Entering someone else’s land
1. Unknown trespasser – no duty
2. Known trespasser/Anticipated trespasser – duty to warn from
i. Artificial dangers that are
ii. Highly dangerous (serious harm)
iii. Hidden from trespasser, and
iv. Property possessor has prior knowledge about danger
3. Licensee – duty to warn of known dangers which are concealed
and known to possessor
 Social, friend, personal, given permission to enter; not
professional, not business
4. Invitee business/commercial – duty to warn, clean-up, and make
safe (all)
i. Of concealed conditions, that possessor knows or could have
discovered through reasonable inspection
5. Police officers and firefighters cannot recover for dangers inherent
to their job
6. Trespassing children – entitled to the care of reasonable prudent
care when person knows or should know an artificial condition on
the property will attract children
7. If possessor owes a duty to an adult – can satisfied by fixing the
danger or posting a warning
i. To be effective warning must be clear and comprehensive
ii. Breach – if individual did not comply/meet standard of what they were
supposed to do
iii. Causation
a. Actual cause – but-for action
1. But-for, or
2. Unascertainable defendants – substantial factor test
I. Burden on the defendant to show they did not cause harm, if
they cannot then they are all jointly liable
b. Proximate cause – whether what happened was foreseeable
1. Always foreseeable
I. Intervening negligent medical treatment
II. Intervening negligent rescue
III. Intervening protection and reaction forces
IV. Subsequent deseases or accidnets
c. Causes
1. Intervening causes – foreseeable, original defendant pays all
 Usually intervening causes, unless told otherwise
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 Acts of negligence are foreseeable
2. Superseding causes – unforeseeable, severs original liability
i. Acts of god
ii. Crimes
iii. Intentional torts
iv. We are told they are superseding
iv. Damages – need actual damages, physical injury
a. Leave the Plaintiff as you find him – brittle bone/eggshell scull
b. Applies to physical and mental conditions
c. Plaintiff cannot recover presumed damages
Defenses to Negligence
A. Pure Comparative negligence – applies unless otherwise told
1. Default defense to negligence
2. Plaintiff is per se negligent, they will still recover
3. Damages will be reduced by the percent of plaintiff’s fault
B. Modern/modified comparative negligence
1. Plaintiff is negligent
2. If plaintiff is more than 50% at fault, plaintiff does not recover anything
C. Pure contributory negligence
1. If Plaintiff is even 1% at fault, plaintiff does not recover anything
D. Assumption of risk
1. Plaintiff knew and appreciated the nature of the risk and did it anyway
2. Plaintiff does not recover
3. Defense to negligence or strict liability
E. Joint and several liability
1. Two or more people cause a single accident, plaintiff can sue all or a single
defendant and recover all of the damages
2. Contribution – defendant who paid damages can recover from co-defendants
the percentage of their fault
i. Does not apply against a tortfeasor who is immune from liability
ii. Defendant that paid damages can recoup what he was not at fault for from
iii. Can get 100% of the money back if indemnified
a. Vicarious liability
b. Retailer gets money from manufacturer
F. Vicarious liability
1. Employer liable for negligent acts of employees, when employee is acting
within the scope of his employment
i. Unless, it is an intentional tort – look at job duties
ii. Employer is still liable if intentional tort is committed to advance the
employer’s interests
2. Independent contractors – employer is not liable because individual is not
employee but under contract, unless
i. Independent contractor engaged in abnormally dangerous activity, or
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ii. Employer gave independent contractor non-delegable duties (benefit or
safety of the public cannot be delegated)
iii. Independent contractor hurts a customer
3. Car owner – car driver
i. Car owner usually not liable for car driver’s actions, unless the driver is
doing an errand for car owner
4. Parent – child
i. No vicarious liability for parents
Other types of Negligence
A. Negligence per se
1. Standards set out in the statute are clearly defined
2. Elements
i. Violation of a statute
ii. Injured party is part of the protected class the statute was trying to protect
iii. Injury was the one the statute was designed to prevent/prevent
3. Exceptions
i. Statutory compliance is more dangerous than statutory violation
ii. Statutory compliance is impossible under the circumstances
B. Res Ipsa
1. Elements – goes to duty and breach
i. Whatever occurred does not normally happen absent negligence
ii. Defendant was in exclusive control (no one else could have done it)
iii. Then jury could infer negligence
2. Look for a motion for directed verdict or summary judgment in the question
C. Negligent Misrepresentation
1. Elements
i. Misrepresentation by the defendant
ii. In a business or professional capacity
iii. Breach of duty to the plaintiff
iv. Causation (actual reliance on misrepresentation)
v. Justifiable reliance
vi. Damages
2. Defendant owns a duty to those the misrepresentation was directed at or who
the defendant knew would rely on it
Strict Liability
A. Strict liability
1. Types
i. Abnormally dangerous activities
a. Chemicals (unless told otherwise), TNT, explosives
b. Activity creates a foreseeable risk of serious harm even when
reasonable care is exercised
c. Uncommon in the area where it is conducted – out of context
d. Activities that are always abnormally dangerous
1. Any use of explosives
2. Any use or transportation of highly toxic chemicals or biological
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3. Anything involving a high dose of radiation or nuclear power
ii. Wild animals
a. Injury is caused by animal itself or,
b. Caused because it is a wild animal
2. Wild animals
i. Wild animals cannot be domesticated
ii. Domesticated animals can become wild if dangerous propensity
iii. Can sue if your injury comes as a result of your reaction to a wild animal
3. Scope – to foreseeable plaintiffs injured as a result of the dangerous
propensity of the activity
Products liability
A. Using a widget and something goes wrong, bought something and its broken
1. Types
i. Negligent act – someone did not do what they were supposed to do so the
product did not work
I. The product differs from all others that came out of the same assembly
line – more dangerous than expected by the consumer
II. To prove breach of duty
I. Negligent conduct by the defendant that falls below the standard of
care of a reasonable person under like circumstances
 Consider superior skill or training as defendant has or purports
to have
II. That lead to,
 An intermediary’s failure to find the defect is not a superseding
cause, unless it becomes something more than ordinary
foreseeable negligence
III. Supplying a defective product
 Retailers only need to make a superficial inspection to avoid
liability for manufacturing defects
IV. Damages
 Can recover for personal damages and property damages
 If only suffers economic loss from buying the product, cannot
recover under negligence theory but have to bring an action for
breach of warranty
ii. Breach of warranty – there was a label, sticker, something in writing
promising how the product would work
iii. Strict product liability – defective product, can sue anyone in chain
a. Defendant is a commercial supplier/manufacturer
1. A merchant is someone who routinely deals in goods of this kind
2. No privity requirement
3. Typical parties involved in hypos
I. Private parties selling a product – not merchants
II. Service providers – not merchants
III. Commercial lessors – merchants
IV. Parties up the distribution chain – every party in the chain is a
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b. Product leaves manufacturer defective
1. Design defect – the risks of design outweigh the benefits so that a
reasonable person would not put it on the market place
I. Plaintiff has to show a hypothetical alternative design
II. Design is safer than the version marketed
III. Design is economically feasible
IV. Design must be practicable, cannot make product harder to use
and must still be able to achieve its prime objective
2. Manufacturing defect
3. Satisfied even if the commercial supplier had not opportunity to
inspect the manufacturer’s product before selling it
c. Sold by someone in the commercial chain
1. Product has not been altered since it left the manufacturer
2. If product traveled through ordinary channels – no alteration is
d. Foreseeable user
e. Used in the manner it was intend
1. Use does not have to be appropriate
f. Does not require that suppliers have an opportunity to inspect
g. May recover only personal injury and property damages
iv. Inadequate warning – failure to warn or inadequate warning (the word
warning will be in the question)
a. Defense – assumption of risk
b. Hidden residual risk and lacks warning
c. Adequacy of warning – understandable, if harm is easy to avoid the
warning must tell the user how to avoid it
d. Prescription drugs and medical devices – warnings to the prescribing
physician is enough
B. Defective products
1. A product is deemed defective in design or warnings if it fails to comply with
applicable government standards
2. A product’s compliance with government standards is only evidence the
product is not defective
3. Allergic reactions – if the allergic group is significant, the product is defective
if it fails to include adequate warnings
C. Defenses
1. Comparative responsibility
i. Plaintiff did something foolish
ii. Plaintiff can still recover but the recovery will be discounted by the
Plaintiff’s actions
Products Liability
A. Theories
1. Intent
i. Defendant intended the consequences or knew they were substantially
certain to occur
ii. There is a defect
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iii. Defect existed when it left defendant’s control
2. Negligence
i. Duty – foreseeable plaintiffs
a. Users,
b. Consumers, and
c. Bystanders
ii. Breach – negligent conduct by defendant leading to the supplying of
defective product
a. Plaintiff may invoke res ipsa
b. Negligence in design defect – defendant knew or should have know of
the danger of the product as designed
c. Retailers and wholesalers – satisfy duty by conducting cursory
inspection, should have opportunity to inspect
iii. Causation
a. Intermediary failure to discover defect does not supersede
manufacturer’s liability, unless intermediary’s conduct exceeds
foreseeable negligence
b. Disclaimers are irrelevant
iv. Damages
a. Can recover for physical injury or property damage
b. Cannot recover economic loss
3. Strict products liability
i. Commercial supplier of product
a. Any commercial supplier, including lessor
b. Not causal sellers or service providers
ii. Producing or selling defective product
a. Consumer expectation standard for defect
b. Retailers liable even if they did not have an opportunity to inspect
c. If retailer discovered defect and failed to take action, manufacturer is
not longer liable
d. Manufacturer is strictly liable even if it did not know or have reason to
know of the defect
iii. Causation
a. If defect is based on failed warning, actual cause – presumption
warning would have been read and heeded
b. Defendant must account for reasonable misuses
c. Disclaimers are irrelevant
d. Actual cause – Defect existed when product left defendant’s control
e. Proximate cause – negligent failure of intermediary to discover defect
is intervening cause, not superseding
f. If defect is difficult to trace, plaintiff may rely on an inference that
such a product failure ordinarily would occur only as a result of a
defect (res ipsa)
iv. Damages
v. Defective product must reach plaintiff without substantial alteration
vi. Defense – assumption of risk
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4. Implied warranties of merchantability and fitness for a particular purpose
i. Merchantability – goods are of average acceptable quality and fit for
ordinary purpose goods are used
ii. Fitness for a particular purpose – seller knows or should know the
particular purpose the goods are required for and buyer is relying on
seller’s skill and judgment in selecting good
iii. Who can sue – buyer, family, household, and guests
iv. Product fails to live up to standards – no need to prove any fault of the
v. Causation
a. Actual and proximate as in negligence cases
b. Disclaimers – rejected on personal injury but accepted for economic
vi. Damages
a. Personal injury
b. Property damages
c. Economic loss
vii. Defenses
a. Assumption of risk
b. Failure to give notice of breach – under UCC
5. Representation
i. Express warranty
a. Consumer, user, or bystander
b. Buyer – warranty must have been part of the basis for the bargain
c. Not in privity – someone relied on the representation, does not need to
be person suing
d. Breach – do not need to prove fault, but that product did not live up to
e. Causation – same as in implied warranties
1. Disclaimers – effective only if it is consistent with the warranty
f. Damages – same as in implied warranties
g. Defenses – same as in implied warranties
ii. Misrepresentation of fact
a. Statement was of a material fact concerning the quality or use of
goods, and
b. Seller intended to induce reliance by the buyer
c. Justifiable reliance
1. Required, reliance does not need to be the victim’s
2. Privity is irrelevant
d. Causation
1. Actual cause – reliance
2. Proximate cause – same as in negligence cases
e. Damages
1. Physical injury
2. Property damage
f. Defenses
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1. Assumption of risk – not a defense
B. Types of defects
1. Manufacturing defects
i. Product is different or more dangerous than all other products made
property when it leaves manufacturer
ii. Defective – if product is more dangerous than the consumer expected,
must anticipate reasonable misuse
2. Design defects
i. All products are the same but have dangerous propensities
ii. Defective – must show alternative design that would have made the
product safer and would not have seriously impacted the product’s price
and utility (feasible alternative)
3. Inadequate warnings
i. Manufacturer failed to give adequate warning regarding the risks involved
in using the product that are not apparent
ii. Prescription drugs – enough to give warnings to learned intermediaries
4. Non-compliance with government safety standards – establishes defect
5. Compliance with government safety standards – evidence that product is not
6. Defendant not liable for unforeseeable dangers at the time of marketing
7. Defect must have existed when the product left the defendant’s control,
inferred if moved through normal channels of distribution
C. Concepts applicable to all product liability cases
1. No privity requirement – all foreseeable plaintiffs can recover
Other Torts
A. Nuisance
1. Elements
i. Unreasonable interference with the use and enjoyment property
ii. Standard – unreasonable to an objective person (i.e. to a reasonable
prudent person without sensitivities)
2. Types
i. Private – interference with someone’s property. Affects generally one
ii. Public – interference with the enjoyment of the public. Affect the
public/community at large
a. Normally a public official must initiate the suit
b. If private individual initiates the suit, they must show special/unique
damages – look for special damages
B. Attractive Nuisance
1. Elements
i. Landowner has a duty to exercise ordinary care to avoid reasonably
foreseeable risk of harm to children caused by artificial conditions on the
ii. The Plaintiff must show
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a. Dangerous condition present on the land of which the owner is or
should be aware,
b. The owner knows or should know that young persons frequent the
vicinity of this dangerous condition
c. The condition is likely to cause injury because of child’s inability to
appreciate risk
d. The expense of eliminating the danger is slight compared with the
magnitude of the risk
C. Lost of Consortium
1. Elements
i. Victim of a tort is married,
ii. Uninjured spouse gets separate cause of action
2. Derivative cause of action, can recover for
i. Loss of services
ii. Loss of society – loss of companionship
iii. Loss of sex
D. Defamation
1. Elements
i. Statement of or about Plaintiff,
a. Identifies the Plaintiff
b. Inference that statement is based on facts
c. Plaintiff must be alive at the time the statement is made
ii. Negative
a. Hurts reputation, your character
b. Lowers estimation in the community
c. Mere insults, vulgar language is not defamatory
iii. With publication, and
a. Heard and understood by third party, one other person satisfies
publication requirement
b. Does not need to be intentional, negligent publication is enough
c. Every person who repeats defamatory statement can be liable as a republisher
iv. Damages
a. Hurts ones’ reputation
2. Type of statement
i. Libel – written
a. No special damages are required
b. Only that statement hurt reputation
ii. Slander – oral
a. Must prove it cost you money, special damages
iii. Slander per se – statements are so hurtful damages are presumed, 4 types
a. Statement about one’s trade or business
b. Statement about chastity of a woman
c. Crime of moral turpitude, accusing one of committing serious felony
1. If the crime involves violence or honesty, it is a serious crime
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d. Loathsome disease
1. Leprosy
2. Venereal disease (STD)
3. Who is being defamed
i. Everyone is presumed to be a private person, unless told otherwise
ii. Private
a. Standard of proof is negligence, as to the truth
iii. Public
a. Standard of proof is malice as to truth (reckless disregard of the truth)
iv. Only becomes public figure if you put yourself out in public domain,
everyone knows you
4. If subject of the statement is a matter of public concern
i. Public concern
a. Example: Anything involving honestly or integrity of a public official
b. Celebrity’s integrity
ii. Plaintiff must also prove
a. Falsity of the statement
b. Some degree of fault, depends on whether Plaintiff is public or private
5. Defenses to defamation
i. Absolute defense – truth
ii. Privileges
a. Absolute
1. Between spouses
2. Officers of the branches of government acting in their official
3. Statements public officials make in public proceedings
b. Qualified – public interest in encouraging candor
1. Make statement on someone else’s behalf (they asked for
statement) – reference or recommendation,
2. Something bad happens,
3. As long as you have honest belief of telling the truth (good faith
and reasonable basis) and the statement is within the scope of the
relevant subject at hand
4. Lost if the speaker acted with malice
I. Speaker had knowledge statement was false, or
II. Reckless disregard for the truth
E. Invasion of privacy
i. 4 ways to invade someone’s privacy
ii. False light
a. Portray someone in a false light,
b. Say something that is not true (objectionable to a reasonable person, never
a tested element)
c. Does not need to be bad, just not true
d. Recover for emotional and dignitary damages
iii. Appropriation
a. Unauthorized use,
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b. Of one’s likeness or image,
c. For profit
d. News-worthy exception
iv. Public disclosure of private matter
a. Publically disclosing something you have reasonably expectation of
b. Cannot be public domain information
c. News-worthy information exception
v. Intrusion upon seclusion
a. Intruding, physical invasion of private space (going through someone’s
b. Plaintiff had a reasonable expectation of privacy
1. Elements
i. Misrepresentation
ii. Scienter – knowledge or reckless disregard of the truth
iii. Intent to induce reliance
iv. Causation (actual reliance on misrepresentation)
v. Justifiable reliance
vi. Damages
2. Defendant generally has no duty to disclose material facts but may be liable
for active concealment
Interference with Business Relations
1. Elements
i. Valid contractual relationship or business expectancy of the Plaintiff and
Third Party
ii. Defendant’s knowledge of the relationship
iii. Intentional interference by the defendant inducing the breach or
termination of the relationship
iv. Damages
2. Defendant’s conduct may be privileged if it is a proper attempt to obtain
business or protect the defendant’s interest
Malicious Prosecution
1. Elements
i. Initiating a criminal proceeding
ii. Against the Plaintiff
iii. Ending in the Plaintiff’s favor
iv. Absent probable cause for the prosecution
v. Improper purpose (malice)
vi. Damages
Survival and Wrongful Death
1. Survival statutes – A victim’s cause of action survives death, unless tort
involves intangible personal interests (e.g. defamation)
2. Wrongful death statutes – personal representatives or spouses can recover
damages from a tortfeasor for loss of the descendant’s support and
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