TORTS OUTLINE
INTENTIONAL TORTS
Intent: acting with purpose or knowledge to a substantial certainty
 Intent is a necessary element of any intentional tort
 May be satisfied one of two ways:
1. Purpose
2. Knowledge to a substantial certainty
 Doctrine of Transferred Intent: The transferred intent doctrine
applies where the defendant intends to commit a tort against one
person but instead (i) commits a different tort against that person,
(ii) commits the same tort as intended but against a different
person, or (iii) commits a different tort against a different person.
In such cases, the intent to commit a tort against one person is
transferred to the other tort or to the injured person.
o Doctrine of Transferred Intent can be applied to:
 Battery
 Assault
 False Imprisonment
 Trespass to Land
 Trespass to Chattels (not on exam)
 Doctrine of transferred intent does NOT apply to IIED
 Mistaken identity does not negate intent
 Mentally ill may have intent and are still held liable
 Children treated same as adults in tort law, age only taken into
consideration to determine whether the child could know his act is
substantially certain to produce a harmful result
Battery: the intentional infliction of a harmful or offensive contact.
 Elements of Battery:
1. Intent: acting with purpose or knowledge to a substantial
certainty (two views depending on jurisdiction)
a. Intent to contact; or
b. Intent to contact AND harm/offend
2. Contact: actually contacting the plaintiff’s body or something
so intrinsically close to their person
a. Examples: something they are holding, or something they
ingest.
3. Harmful or Offensive: based on the reasonable person under the
circumstances.
 Implied Consent and Battery:
o Crowded World Scenario: In a crowded world, a certain amount of
personal contact is inevitable and must be accepted. Without
expression to the contrary, consent is assumed to all those
ordinary contacts which are customary and reasonably necessary
to the common intercourse of life, such as a tap on the shoulder
to attract attention, a friendly grasp of the arm, or a casual
jostling to make a passage. The time and place, and the
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TORTS OUTLINE
circumstances under which the act is done, will necessarily
affect its unpermitted character, and so will the relations
between the parties. A stranger is not to be expected to
tolerate liberties which would be allowed by an intimate friend.
But unless the defendant has special reason to believe that more
or less will be permitted by the individual plaintiff, the test
is what would be offensive to an ordinary person not unduly
sensitive as to personal dignity.
Assault: the intent to place a person in apprehension of imminent battery
 Elements:
1. Defendant must act with intent to put the victim in apprehension
of an imminent harmful or offensive contact (battery)
2. The victim must reasonably be placed in apprehension of an
imminent harmful or offensive contact
a. Does not mean the D must actually be able to carry out the
threat but there must be an apparent present ability
allowing the plaintiff to reasonably believe the D could
make the contact.
 Purpose of the tort of assault is to protect the right to be free
from apprehension and the right to mental tranquility
 To collect under assault, P does not need to prove fear, only
apprehension (anticipation) however also proving fear will increase
damages.
 Threats that lack imminence do not constitute assault:
o Conditional threats – “if you were a man I’d punch you”
o Future threats – “I will kill you tomorrow”
False Imprisonment: The intentional restraint of a person without the
lawful ability to do so.
 Elements:
1. Intent to confine
2. Restraint or confinement to a bounded area without any
reasonable means of escape
3. Awareness of confinement
 Most jurisdictions say the Plaintiff must have been aware of the
confinement as it was occurring but minority does not require
awareness if the Plaintiff suffered an injury due to the confinement.
 Restraint can be satisfied by:
o Physical barriers
o Physical force
o Threats of physical force
o Submission to apparent authority
o Taking something belonging to the plaintiff (clothes while
showering)
o Threats of future action are NOT enough
o Moral persuasion is NOT enough
 Area of confinement can sometimes be large, like an entire state
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
In criminal matters, conviction of a crime for which someone was
arrested is a complete defense for a false imprisonment.
Intentional Infliction of Emotional Distress (IIED): intentionally causing
severe emotional distress
 Elements:
1. Intent (acting with purpose or knowledge to a substantial
certainty) to cause severe emotional distress
2. Extreme and outrageous conduct (as to shock the conscience)
3. A reasonable (not sensitive) person would suffer severe
emotional distress because of the extreme/outrageous conduct.
 The court sets a high standard for extreme and outrageous conduct
and this is extremely hard to prove.
 Exception to the reasonable person standard: if the P was
hypersensitive and D knew it.
 If P can establish elements of another tort, it is possible P can
also collect for IIED caused by that tort.
 Most courts say you do not need to prove physical injury due to the
emotional distress.
Trespass to Land: an unauthorized and therefore unlawful entry onto the
property of another.
 Elements:
1. Intent to be on the land
2. Being on the land (doesnt necessarily require physical presence)
 No fence or signage is necessary and unlike other torts, no damages
are necessary.
 Nominal damages are often awarded in these cases just to vindicate
property rights.
 Consent and Trespass: even if a person has permission to be on
someone’s land, they can still become a trespasser if they exceed the
duration or scope of that privilege.
 Defendant is liable for all consequences or damages caused by their
trespass.
PRIVILEGES TO INTENTIONAL TORTS

The burden of proof is always on the defendant to prove a privilege
existed.
Consent
 Two types of consent:
1. Express: consent given specifically either orally or written
2. Implied: If plaintiff’s behavior indicated consent on her part,
defendant was justified in his act regardless of plaintiff’s
actual feelings.
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Certain conducts (such as medical procedures) require verbal consent.
o Express consent is required in medical situations except when
(all 4 must be met):
1. The patient is unable to give consent,
2. There is a serious risk of bodily harm if treatment is
delayed,
3. Treatment would be such that a reasonable person would
consent under the circumstances &
4. There is no indication that this patient would not consent
to the treatment.
Consent obtained by fraud is not valid if the fraud is related to the
essential character of the act itself (and not just related to a
collateral matter)
Consent (especially implied consent) is dependent on culture and
societal norms
Consent may be limited by rules and customs (NFL case)
Self Defense and Defense of Others: The privilege to use reasonable force
to defend yourself or others against an imminent or threatened battery
 Limitations:
o The privilege only exists when defendant reasonably believes
force is necessary to protect himself (or others) against an
imminent (not future) battery (even when force is not necessary)
o Mistakes are not a defense
o This is not a privilege to use any amount of force, only an
amount that appears reasonably necessary to stop the threatened
battery
o Deadly force is only reasonable when you reasonably believe your
life is in jeopardy
o The privilege ceases to exist when the threat of the imminent
battery is over. (There is no privilege to retaliate)
o Deadly force cannot be used to defend property, but in a
minority of jurisdictions deadly force is okay if the defendant
gives clear warning of the danger.
Necessity
 Two Types:
o Public necessity: invoked when the defendant reasonably
believes that his action was necessary for the greater good of
the public (even if he isn’t right)
o Private necessity: invoked when the defendant is threatened or
reasonably appears to be threatened with serious harm
 Public necessity: Defendant (mainly public officials) must reasonably
believe his action was necessary for the public good, even if he
isn’t right.
o Requirements:
1. Public, rather than private, interests are at stake
2. The defendant was reasonable in believing that action was
needed
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3. The action that the defendant took was a reasonable
response to that need.
o Public necessity is a complete defense meaning if all
requirements are met, D is not liable for any of the damages
that resulted from his actions.
Private necessity: Defendant takes reasonable action based on a
threat of serious harm to himself.
o Requirements:
1. The defendant must be threatened or reasonably appear to be
threatened with serious harm
2. The defendant’s response is reasonable in light of the
threat
o Private necessity is not a complete defense which means the
defendant is still liable for any damages to the plaintiff that
resulted from the actions he took.
o If the requirements are met for the privilege of private
necessity to apply, the defendant is relieved of liability for
technical torts (like trespass to land, etc.)
NEGLIGENCE [DUTY]

Elements of Negligence:
1. Duty (to use reasonable care)
2. Breach (of the duty to use reasonable care)
3. Causation (causation in fact + proximate causation)
4. Damages (actual loss, caused by the breach of the duty to use
reasonable care)
Duty: as a general rule, all persons have a duty to use reasonable care to
avoid injuring others. It is safe to assume there is ALWAYS a duty to use
reasonable care. Generally, the standard of care is the reasonably
prudent person under the circumstances, but standard of care is different
for professionals, children, etc.
 Two general rules of duty:
1. If a person acts, he owes a duty of reasonable care to avoid
injuring others
2. If a person doesn’t act or fails to act, he has no duty of care.
(There is no duty to take action to help anyone)
 Exceptions to the second general rule re failure to act:
o Special Relationship between P and D
 There is a duty to act where there is a special relationship
between D and P such as when D has control over P
(parent/child) or when D has control over the
instrumentality causing the injury to P.
 The key is whether the assertion of custody has disabled P
from taking preventative measures on her own behalf
 In special relationship cases, ask “Who was in a better
position to avoid the harm?”
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If D was in a better position than P, there is good
reason to argue the D owed a duty of care.
o Special relationship between D and third party who injured P
 Common in therapist/murderer relationships
 These cases also turn on control and who was in a better
position to prevent the harm
 A therapist has a duty of care to take action to protect a
potential victim
o Voluntary assumption of responsibility and reliance
 Duty to act may be imposed when D assumes responsibility to
act and such undertaking increases the risk of harm or is
relied upon by P to her detriment. (P relies on apartment
security and does not lock her door)
o Duty of care of owners and occupiers of land to entrants on
their land
 If someone is injured on another’s land, the duty of care
owed to that person depends on whether they are a
trespasser, invitee, or licensee.
Duty owed to trespassers: there is generally no duty to take
precautions for trespassers or to make one’s premises safe for
trespassers.
o Exception to the general rule: if and when the land owner
discovers the trespasser, the land owner must use ordinary care
to avoid injuring him through active operations.
o Another exception is children: a land owner has a duty to fix
dangers on their land that would attract child trespassers
(attractive nuisance).
Duty owed to licensees: there is a duty for a land owner to warn the
licensee of any hidden dangers unknown to the licensee of which the
owner has knowledge.
o A licensee is defined as a person who enters the owner’s land in
for their own purpose. Social guests are included in this
category.
o A licensee must take the owner’s land as it is.
Duty owed to invitees: the highest duty of the three categories,
there is a duty for the land owner to exercise reasonable care to
keep the premises reasonably safe for the invitee.
o An invitee is defined as a person who goes onto the owner’s land
in furtherance of the owner’s business or where there is a
mutually beneficial business relationship. (A common example is
a store customer)
Note that even though a person may be an invitee when entering the
land, they can become a licensee or trespasser if the circumstances
change.
o Example: after a customer completes his purchase, he becomes a
licensee.
o Example: after a salesman is rejected by the land owner, he
becomes a trespasser if he does not leave the land at that time.
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o Example: a social guest can transition from licensee to
trespasser if they overstay their welcome.
NEGLIGENCE [BREACH]
Breach: failure to use reasonable care
 B<PxL Test
o B: Burden of added safety precautions (how much would it have
cost the D to add safety measures?)
o P: The probability of an injury happening (how likely was the
type of injury suffered?)
o L: The gravity of the resulting injury (how serious is the type
of injury that occurred?)
o BPL test determines who is the cheapest cost avoider.
o If B is less, the defendant breached a duty because it is
unreasonable for them to not take an additional measure when the
cost was smaller than the risk/gravity of the potential injury
o If B is more, the defendant can argue that they were not the
cheaper cost avoider because the cost of an additional safety
measure was more than the likelihood or severity of the injury
and therefore not a reasonable measure to take.
o This test is NOT applied to professionals (test for
professionals is the “ordinary competent professional”)
 Standard of Care: generally the reasonably prudent person under the
same circumstances, but there are exceptions/differences:
o Custom: evidence of custom may be considered by the jury as
evidence of what a reasonably prudent person would do under the
circumstances, but evidence of custom is not conclusory.
o Emergency Doctrine: standard of care is the reasonably prudent
person in an emergency (given the circumstances of the
emergency, did the D act reasonably?)
o Children: standard is the reasonable child of like age,
intelligence and experience.
 There is an exception: children are held to an adult
standard of care when they engage in certain activities.
Depending on jurisdiction, they are held to the adult
standard when they engage in:
1. Inherently dangerous activities OR
2. Activity that is normally undertaken by adults
o Physically Disabled: the standard is the reasonably prudent
person with the same disability (ex. The blind man who did not
use his cane for a short walk to the restroom)
o Mentally Ill: there is NO modification of standard of care for
mentally ill; they are held to the same general standard of the
“reasonably prudent person”
 A minority of jurisdictions have an exception for “sudden
and unexpected bouts of insanity”
o Professionals: the “ordinary, competent” professional
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 Professional defined as having a unique skill, training or
expertise in a specific area (generally someone who has a
professional degree in their field like physicians,
lawyers, dentists, vets, pilots, accountants, engineers)
 Exception to the standard is a specialist, someone who holds
themselves out as a “neurosurgeon,” not just a doctor, will
be held to a higher standard with a neurology patient.
 B<PL test is NOT applicable to professionals
 Unlike other groups, evidence of custom is determinative:
- Professionals only need to conform to the standard of
that profession in that community and a jury cannot
reject that customary standard (jury cannot find a
professional standard unreasonable)
o Standard for Lawyers: (1) knowledge and skill, (2) exercise of
best judgment, and (3) use of due care.
o Standard for Physicians and Medical Malpractice
 Majority of jurisdictions apply the local standard, “a
physician in a similar community and similar circumstances”
 Minority of jurisdictions apply the national standard
 Medical malpractice must generally be established via expert
testimony unless the negligence is grossly apparent
(because the jury is not in a position to determine the
reasonableness of a doctor’s actions).
 There is a duty of informed consent between doctors and
patients: a medical professional must inform the patient of
all risks and of alternative options.
 A general rule: a doctor must disclose personal interests
unrelated to that patient’s health (research or economic)
that may affect the doctor’s judgement.
 Elements of breach of duty of informed consent:
1. Breach: failure to disclose the risks, application
depends on jurisdiction
a. Majority (physician focused): did the doctor fail
to disclose the risks that the ordinary,
competent doctor would have disclosed?
b. Minority (patient focused): did the doctor fail
to disclose the risks that the ordinary
reasonable patient would want disclosed?
2. Causation: if the plaintiff knew of the risk, would
she have undergone treatment? Different applications
depending on jurisdiction
a. The reasonable patient (objective)
b. This specific patient(subjective)
3. Injury: the patient must have been injured to state a
claim. Even if the patient later finds out there was a
99% risk of death but the patient was fine, patient
can’t state a claim.
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Negligence Per Se: the use of a standard set by criminal statute as a
shortcut to prove negligence.
 Elements of Negligence Per Se:
1. P must be a member of the class the statute is meant to protect
(speeding  other drivers, pedestrians)
2. The type of harm must be the kind the kind that legislature
meant to prevent (speeding  collision injury)
3. Legislation must be otherwise appropriate for use in a
negligence case for establishing what the reasonable person
would do. Evaluate the following factors:
a. Is there a common law duty already or would this statute
impose a new duty?
b. Would negligence per se impose a ruinous liability?
c. Is there liability without fault?
d. Does the statute provide notice by clearly defining what
actions are barred?
e. Did injury result directly from statute violation? If not,
that pulls away from negligence per se.
 The effect of negligence per se (NPS) varies by jurisdiction:
1. Majority approach: negligence per se with excuses (the judge
determines the excuses) (ex. Despite statute, woman walked on
the side of the road because the sidewalk was slicked over)
2. Negligence per se is conclusive evidence of breach
3. NPS is a presumption of negligence but the jury decides if it
was reasonable
4. NPS is mere evidence of negligence but the jury makes the
ultimate decision
Res Ipsa Loquitur: the mere fact that the accident/injury occurred is
evidence of breach; it speaks for itself.
 This doctrine allows the P to get their claim to a jury even when
they do not have any direct or circumstantial evidence showing the D
was negligent.
 This does not work against multiple defendants because you cannot
prove exclusive control.
 Elements to satisfy Res Ipsa Loquitur:
1. Incident must not normally occur without negligence
2. Instrumentality that caused the injury must be under defendant’s
exclusive control
 After RIL is established, the court applies it to the case depending
on jurisdiction:
1. (Majority) Establishing RIL creates an inference of negligence,
from which the jury makes the final decision on whether the D
was actually negligent. (the jury does not have to find
negligence just because RIL is established)
2. (Minority) RIL raises presumption of negligence and D must
introduce evidence to rebut
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3. (Minority) RIL raises presumption of negligence and shifts the
entire burden of proof to the D to show his negligence did not
cause the injury.
NEGLIGENCE [CAUSATION]

Causation can be shown in two ways:
1. Causation in fact
2. Proximate causation
Causation in fact: proving the injury would not have occurred to P BUT FOR
D’s negligence
 To get to the jury, plaintiff only needs to prove that it is probable
that the injury would not have occurred but for D’s negligence.
 D will need to prove that the injury would have happened even without
his breach to overcome.
 There can be multiple causes in fact
 There are three exceptions for causation in fact:
1. Medical misdiagnosis
2. Toxic exposure
3. Multiple sufficient causes
 Medical misdiagnosis: where D’s misdiagnosis of P’s condition reduced
P’s chance of survival but the chance was already less than 50%.
o Two approaches:
1. Substantial factor test:
 Issue can go to jury if a reasonable jury could
conclude that D’s negligence was a substantial factor
in bringing about the death of P
 If they prove the misdiagnosis is a substantial
factor, then P may recover 100% of damages
2. Loss of chance test:
 Jury calculates total damages (100%) then awards the P
damages based on the chance of survival that P lost
due to D’s negligence.
 Toxic Exposure Cases: where P can only prove that exposure to toxin
increased chances of injury
o P must prove that the exposure “more than doubled” the chances
of injury to recover.
o Theoretically, you could try a loss of chance approach based on
the increased risk of developing the disease/injury but no court
has accepted this approach.
 Multiple causes: where two negligent actions cause a single injury
o Multiple sufficient causes: Where both Ds breach but one’s
breach alone would have caused the same harm anyways.
Therefore, neither is a BUT FOR cause of the harm.
 In these cases, the court applies the substantial factor
test – each D is deemed liable if his breach was a
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substantial factor in producing P’s harm, meaning his
breach alone could have caused the injury all by itself.
o Multiple insufficient (necessary) causes: where both Ds breach
but neither party’s negligence alone could have caused the
injury but combined they are sufficient to cause the injury.
Both breaches are considered BUT FOR causes, both Ds are liable.
o When the court cannot determine which party caused the harm (Two
people shoot at P but only one bullet hits), the burden is on Ds
to prove that it was not their negligence that caused the harm.
If neither can prove that they were not negligent, they are both
liable.
DES Cases/The Market Share Approach: a group of D’s manufactured a
drug that injured P but P does not know which one specifically
manufactured the product that she used. The court took a market
share approach, meaning they divided damages among the group of
defendants based on their percentage share of the total market (30%
of market  30% of damages) but this has not been applied in any
other case.
Proximate Causation: where there is a breach and BUT FOR causation, P must
still prove that D is responsible for all of the consequences that
followed. Proximate causation limits the range of D’s liability to only
those consequences that are reasonably foreseeable (ask: should the D be
held liable for this consequence of his breach or should we draw a line?).
Typically a jury question.
 *** To get to proximate causation, breach and causation in fact must
be satisfied first ***
 There can be more than one proximate cause
 Generally, defendant is not liable for remote and unforeseeable
consequences, but there are exceptions:
o Thin Skull Rule: if it is foreseeable that D’s conduct will
physically injure P and P is actually injured then D is liable
for the consequences whether they are foreseeable or not
(hitting someone on the head but P has a skull as thin as an
eggshell. D would still be liable for brain damage even though
that extreme consequence was not foreseeable).
 D takes P as she finds him
 Limited to things in Plaintiff’s body and mind
o Reasonably foreseeable kind of harm vs. manner of harm: an
exception to the general rule of reasonable foreseeability – as
long as the harm suffered by P is the same general sort that
made D’s conduct negligent, it is irrelevant that the harm
occurred in an unusual/unforeseeable manner.
 Ex. The gas drenched flaming rat, the explosion was a
foreseeable kind of harm from a flame in the same room as
gasoline even though a rat getting drenched in gasoline
then running towards the fire and causing an explosion was
not a foreseeable manner of harm.
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Must consider the reasonable foreseeability of the kind of harm (did
D, at the time he acted, foresee the risk that injured P?)
Factors to consider when determining if the risk was foreseeable:
o Social utility of D’s activity
o Cost of precautions
o Likelihood of injury
o Gravity of the potential injury
Unforeseeable plaintiffs: there are two different views in regards to
the unforeseeable plaintiff (as discussed in Palsgraf)
o Prevailing approach: the unforeseeable P should be handled under
proximate cause.
o Minority: the unforeseeable P should be handled under duty and
there is no duty owed to the unforeseeable plaintiff.
Intervening causes: a force occurring between D’s negligence and P’s
injury which contributes to that injury (foreseeable causes)
Superseding cause: an intervening cause that is sufficient to prevent
D’s negligence from being a proximate cause of the injury. Where a
superseding cause is found, D is not liable. (unforeseeable causes)
o Acts of God are often a superseding cause but only when the
force of nature is extraordinary (snow storm in NY is not
superseding)
o Intervening intentional or criminal acts of a third party are
usually deemed superseding since there is intent, but there are
exceptions:
 When a breach of security causes criminal activity the
criminal act is not superseding because it is the type of
act that was meant to be prevented.
 Suicide is a superseding act if it appears to be a voluntary
act. If it appears to be a result of an “irresistible
impulse” (acting in a sudden frenzy), then suicide is only
an intervening act.
Rescue Doctrine: when an injured rescuer sues the person who caused
the situation that created a need for rescue
o Elements:
(1) D must have been negligent to the person rescued and such
negligence must have caused peril or the appearance of
peril to the person rescued;
(2) The peril or appearance of peril must have been imminent;
(3) Circumstances must have been such that the reasonable
person would think that peril or appearance of peril
existed; and
(4) Rescuer must have acted with reasonable care in
effectuating the rescue (were the actions of the rescuer
reasonable?).
Firefighter rule: some states do not permit recovery by professional
rescuers if the injury was sustained by the type of risk reasonably
anticipated by the job.
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Medical malpractice: if between D’s breach and P’s aggravated injury
caused by medical malpractice, the original D is still proximately
liable for all of the consequences and the negligent physician is
joint/severally liable for just the medical malpractice.
NEGLIGENCE [DAMAGES]

Negligence requires that the plaintiff suffered actual loss or damage
o Emotional injury is not enough (pure emotional loss)
o Financial injury is not enough (pure economic loss)
o Comparative negligence and apportionment of damages
NEGLIGENCE [DEFENSES]
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The
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o
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defenses to negligence include:
Contributory negligence
Comparative negligence
Implied assumption of risk
Express assumption of risk
Contributory Negligence: where P’s negligence contributes proximately to
his injuries, he is totally barred from recovery
 In the old system, contributory negligence was a complete defense
 In the current system, most jurisdictions no longer apply
contributory negligence but instead apply comparative fault, which
does not bar P’s recovery but only reduces it.
 Doctrine of last clear chance: if the D had an opportunity to prevent
the harm right before it happened and P did not have that opportunity
then the existence of the opportunity (the last clear chance) wipes
out the effect of P’s contributory negligence
o Used in jurisdictions that still use the old system of
contributory negligence
Comparative Fault: the apportionment of liability based on how much each
party was at fault
 The vast majority of jurisdictions use this instead of the old rule
of contributory negligence
 Three approaches to comparative fault:
1. Pure: P can recover no matter how much they are to blame (even
if P is 90% at fault he can still recover 10% of the damages)
2. Modified less than: where the P can only recover when his fault
is less than D’s (P can only recover when he is 49% or less at
fault)
3. Modified not greater than: where P can recover if they are
either less at fault or equally at fault as D (P can recover if
he is 50% or less at fault)
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
There are two ways to argue comparative fault
1. Relative culpability of each party’s conduct (who breached
more?)
2. Causative potency of each party’s conduct (whose breach was more
of a proximate cause?)
Express assumption of risk: where P expressly says they know of a risk and
assume it (common example is signing a waiver of liability)
 Express assumption of risk is a complete defense
 These are enforceable but there are exceptions when the exculpatory
provision is void as against public policy:
o Where D intentionally caused the harm
o Where the transaction is affected by a public interest.
Evaluated with two factors:
1. Is D performing a service of great importance to the public
which is often a matter of practical necessity for some
members of the public?
2. Is the agreement a standardized contract of adhesion? If
yes, unenforceable.
Implied assumption of risk: where there is evidence that P voluntarily
encountered a known risk
 Two elements:
1. P voluntarily encountered the harm
2. P must have ACTUALLY known of the risk (not should have known)
 In most jurisdictions, implied assumption of risk is still a complete
defense, but a growing number of jurisdictions handle it under
comparative negligence and implied assumption of risk will only
decrease P’s recovery but not bar it completely.
VICARIOUS LIABILITY

Where D is held liable for someone else’s tort even though D is not
at fault
Respondeat Superior: where an employer is liable for an employee’s torts
 Elements:
1. There must be an employer/employee relationship between D and
the person who committed the tort
2. The employee must have committed the tort while acting within
the scope of his employment
 When determining whether the employee was acting within the scope of
his employment, consider the following:
o Was the employee performing services for which he has been
employed?
o Was the employee doing anything that is reasonably incidental to
his employment?
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


o Should this conduct have been fairly foreseen?
o Did injury to P arise from a risk inherent to the nature of the
employer’s business such that is seems fair for the employer to
bear the loss?
o Were the employee’s acts so connected to her employment as to
justify making the employer bear the loss?
Some courts distinguish between a frolic and a detour:
o Frolic: abandonment of employer’s business in pursuit of their
personal business
o Detour: a slight deviation from employer’s business for
employee’s own reasons that is sufficiently related to the
employment to fall within the scope
Employers can also be held directly liable for their own negligence
if the employer’s negligence was the reason for P’s injury (ex. The
employer knew the employee was dangerous)
Generally, there is no vicarious liability for torts of independent
contractors
o *** Key determination is whether the contractor determines how
the work is done or if they are following direction of the
company/employee handbook
o There is an exception: employer still liable when an independent
contractor performs a non-delegable duty
 A non-delegable duty is defined as performing an inherently
dangerous activity which is one that involves a peculiar
risk of harm that calls for more than ordinary precaution.
(like fixing brakes)
 Exception to the exception: employer’s liability for
independent contractors performing a non-delegable duty
does NOT apply to collateral negligence by the independent
contractor (negligence unrelated to the special dangers of
the work)
- Ex. Employer hires independent contractor to repair
brakes and during his repair he negligently starts a
fire by knocking over a can of oil. Employer is not
liable because although fixing brakes is a nondelegable duty, the type of negligence by the
independent contractor was unrelated to the special
dangers of the work.
STRICT LIABILITY

Where D is liable regardless of their intent and regardless of
whether they were negligent.
Animals:
 Barnyard animals: owners strictly liable when they trespass onto
another’s land
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

Non-domesticated wild animals: owners are subject to strict liability
for any injuries they cause
Domestic animals: owners are strictly liable for injuries caused by
their animals only if they know or should have known that the animal
has dangerous propensities abnormal for its class.
Two different approaches to strict liability for trespassing cattle:
 Fence in rule: owner of trespassing cattle is strictly liable when
they fail to install (and properly maintain) a fence that keeps their
cattle inside the bounds of their property.
 Fence out rule: owner trespassing cattle is not liable for damages if
they fail to install a fence around their property to keep cattle
out.
Rylands Rule: if a D brings something non-natural (weird) onto his land
that is likely to cause harm if it escapes from his land, D is strictly
liable for any harm that it causes if it escapes from land (even if they
were not negligent)
Abnormally Dangerous Activity: D is strictly liable when he is engaging in
an abnormally dangerous activity
 Six factors to consider when determining if an activity is abnormally
dangerous:
1. Inability to eliminate the risk by the exercise of reasonable
care (this is the most important factor, if reasonable care is
enough to eliminate the risk then there is no strict liability,
only negligence)
2. High degree of risk
3. Likelihood that the potential harm will be severe
4. Extent to which activity is not a matter of common usage (weird,
abnormal, uncommon activity)
5. Inappropriateness of activity to place where it was carried on
6. Extent that activity’s value to community is outweighed by
dangerousness
Limitations to strict liability:
 Proximate cause: based on defendant’s engaging in an abnormally
dangerous activity, P may only recover for the type of harm that
makes the activity abnormally dangerous
 Courts are split on when there will be a superseding cause:
1. D engaging in abnormally dangerous activity is not liable when
injury is caused by acts of god or intentional acts of third
persons OR
2. Even if an unexpected act intervened there is still proximate
cause
 To what extent is P’s conduct relevant to strict liability?
o Most courts have held that P’s contributory negligence is not a
bar to strict liability but implied assumption of risk is a bar.
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