INTENTIONAL TORTS
Principals that apply to all intentional torts
1. Involves a volitional act done with intent
a. Volitional = done under the defendant's control
b. Intent = synonymous with purpose
i. Where intent gets tricky:
1. A person does not wish or desire to bring about an outcome but knows
with substantial certainty that the outcome will occur.
2. Transferred intent works in 2 ways
a. Intent transfers from victim to victim
b. Intent transfers from tort to tort
Seven Claims
1. Battery - harmful or offensive contact with the P's person
a. Harmful or offensive contact i. Harmful is easy to recognize.
ii. Offensive = unpermitted (is it unpermitted)
1. Hypersensitivities only considered if the D knows of the hypersensitivity
b. Contact with P's person
i. The P's person is not actual body contact, can be anything physically connected
with the P's person (purse, plate, etc.)
2. Assault - apprehension of an immediate contact
a. Apprehension must be reasonable
i. Don't confuse apprehension with fear or intimidation
b. Immediate contact - must have immediacy
i. Words alone are not typically enough to count for immediacy
ii. Words coupled with conduct is what you need for immediacy
3. False Imprisonment - sufficient act of restraint to a bounded area
a. Sufficient act of restraint - just use common sense - does it seem like a sufficient act of
restraint?
i. Threats are enough. Don’t need application of force to prove claim.
ii. Inaction can be enough in some cases. Doing nothing at all can be enough to
restrain someone if there was an understanding that the D would act for the P's
benefit.
iii. Generally, a P needs to be aware of the confinement at the time it is taking place
iv. The length of time someone is confined is irrelevant
b. Bounded area - freedom of movement is restricted
i. An area is not bounded if there is a reasonable means of escape AND that the P is
aware
4. Intentional Infliction of Emotional Distress - outrageous conduct and damages
a. Outrageous conduct - with a capital O - not every day friction filled world
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i.
Harder fact patterns:
1. Continuous conduct - if keep it up long enough, becomes outrageous
2. Type of P can change outcome
a. Young children - younger they are, easier to characterize outrageous
conduct
b. Elderly persons
c. Pregnant women
3. Type of D can change outcome - courts screw these defendants
a. Common Carriers (P is a passenger)
b. Inn Keepers (P is a guest)
b. Damages - must prove damages - not physical, but severe, substantial emotional harm to
make the prima facie case.
c. RE: Intent
i. P can also prove intent by showing recklessness (D had a reckless disregard with a
high probability that her conduct would cause emotional distress in another
person)
ii. Transferred Intent is not available to prove IIED claim
5. Trespass to Land - an act of physical invasion and land
a. Act of physical invasion
i. No requirement that the D know he/she has crossed a property line. Only
requirement for intent is to move forward with conscious decision.
ii. No need to personally going on property if we propel a physical object onto the
land
1. Physical invasion will suffice
b. Land
i. Consider not only the surface but also the air space above and surface below so
long as you're at a distance where the landowner could make reasonable use of the
space.
6. Trespass to Chattels AND
7. Conversion - act of invasion to personal property
a. Some damage to property, it's trespass to chattels
b. A lot of damage or complete destruction is conversion
i. Conversion is also serious interference with possessory rights - also counts as
damages for conversion claim
1. Will have to pay full market value for property
Affirmative Defenses
1. Consent
a. Did the P have capacity to consent?
i. Child cannot consent
ii. Mental impaired cannot consent
iii. Coercion or force destroys consent
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iv. Fraud or mistake destroys consent
b. Was it express or implied?
i. Express - words are used - "go ahead and do it"
ii. Implied
1. Custom or usage
2. P's own conduct
iii. If you exceed its scope, then there can be liability
2. Self-Defense - a person is justified to use reasonable force to prevent what she reasonably
believes to be an imminent force against her.
a. Reasonable belief* - is available as a privilege ONLY if
i. The D herself believed that she was under attack, and
ii. If a reasonable person in the D's position would have believed she was under
attack
*Must be subjectively true and objectively reasonable
b. Reasonable force
i. Deadly force (likely to cause death or serious bodily harm) - most hypos use
firearms, so you'll know you're looking at deadly force.
1. Use of deadly force will be considered reasonable only if the actor
reasonably believes that she is facing a threat of deadly force herself.
2. Does somebody need to retreat before using deadly force in self-defense?
a. Ordinarily a person is under no duty to retreat before using some
force in self-defense. In most cases, you can stand your ground and
defend yourself
b. Courts are divided about whether someone needs to retreat before
using deadly force in self-defense, assuming that the retreat can be
safely undertaken.
i. Modern trend is that you DO need to retreat before using
deadly force unless you are in your own home.
3. Defense of Others - a person is entitled to defend another person under attack in the same
manner and under the same conditions as the person being attacked could defend herself.
a. Place the D in the shoes of the person being protected and then apply the same principals
as in self-defense
b. If a D mistakenly believes a person is under attack is an exception.
i. If a mistaken belief is a reasonable mistake, then the court will allow them to
assert the defense of privilege
4. Defense of Property - a person can use reasonable force to protect his or her real or personal
property.
a. Deadly force can NEVER be used to protect property alone
Don't confuse defense of property with self-defense
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Tips on fact patterns for this:
a. Keep an eye out for the hot pursuit doctrine - can only use reasonable force if you are in
hot pursuit of someone who took property from you - must be immediate.
b. Detention of suspected shoplifter - the rule is just the same as the general rule - a
shopkeeper can detain a suspected shoplifter in a reasonable manner for a reasonable
period.
i. Essentially shopkeeper would be sued for false imprisonment but can use the
privilege of defense of property.
5. Defense of Necessity
Necessity can only be used as a defense against one of our three property torts
a. Public Necessity - if what is being done is to protect a whole lot of people
i. Unlimited and unqualified privilege against a tort action
b. Private Necessity - the D reasonably believes that her action is necessary just to protect
herself or maybe a handful of other people
i. Do have the privilege to interfere with someone else's property BUT, the privilege
is qualified in that you do need to pay for any damages that are caused
Dignitary and Economic Harms
Economic harms
INTENTIONAL Misrepresentation (fraud)
Elements
1. Must be an affirmative misrepresentation by the defendant (D has to say something
affirmatively that is false).
a. Key thing: Silence will not do. If kept a secret, it's not fraud.
2. Must be fault (scienter)
a. Scienter = fancy word for the concept of fault in a fraud cause of action.
3. Statement must be made with an intention to induce the P to rely
a. Misstatement must be material about a central feature or aspect of the transaction.
4. Actual and justifiable reliance
a. Reasonable for the P to rely on what the D had to say.
b. Typically, it sounds like an opinion, so it must be justifiable that the P rely on the opinion
being rendered.
i. If the D has some superior knowledge about the subject matter of the transaction,
some superior skill involving the transaction, then it is justifiable for the P to rely
on the statement/opinion
5. Damages - must have genuinely lost something financially in the transaction.
Basic Elements Restated
1. Affirmative misrepresentation
2. Scienter (fault)
3. Intent to induce reliance
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4. Reliance (actual and justifiable)
5. Monetary damages
Not only does the P have to prove that the D made an affirmative misstatement of fact, but he also
must show that it's a statement that the D knew to be false.
negligent Misrepresentation (fraud)
Hard to prove in real life.
Two key points
1. Courts limit liability for negligent misrepresentation for commercial transactions.
2. D is only liable if she KNEW that the P was someone who would receive and rely on the
information provided to her.
a. Only people to whom the misstatement was directly made
Intentional Interference with business relations
Three levels:
1. Inducing breach of contract - D intentionally induces the breach of an existing contract
2. Interference with contractual relations - D interferes with an existing contract without causing
an actual breach but makes it much more difficult
3. Interference with prospective economic advantage - D interferes with someone's business
prospects whether there was a contract involved.
Inducing Breach of Contract
An intentional action that causes a 3rd person to breach an existing contract with the P.
Interference with Contractual Relations
If the D's conduct makes performance of the contract more difficult rather than leading to an actual
breach.
Interference with Prospective Economic Advantage
Define the protected interest as the P's expectation of economic benefit from 3rd persons.
Very hard to prove in real life - very rare
defamation
Elements
1. Defamatory statement that is false
a. Injures the P's reputation
b. Burden of proof falls on the D - must raise truth as a part of defense
2. Of and concerning the P
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a. Must be reasonably understood to refer to the P
3. Publication (statement published to a third party)
a. Statement must be communicated in an understandable fashion to some third person
i. People who see or hear the statement must be capable of understanding it
ii. Publication must be at least negligent if not intentional about sharing the
information
4. Damages
a. Determine whether a P must prove special damages
i. SLANDER - when the defamation is spoken, P must prove economic loss tied to
the defamatory statement
ii. LIBEL - when the defamation is in a more permanent form, the jury is allowed to
presume special damages
Exception to Slander Rule
Most jurisdictions will allow a P to recover presumed damages, even in a slander case, if the slander
falls into an especially harmful category called Slander Per Se
Four Categories for Slander Per Se
1. Statements that impugn one's trade or profession
2. Statements that accuse a P of a serious crime
a. Anything that would involve punishment by imprisonment or a major fine
3. Statements that suggest that someone has a loathsome disease
a. Not typically seen anymore
4. Statements that accuse a woman of unchastity
a. Many states have abandoned this category or apply to men as well
Defenses
1. Consent
a. Where a D agreed to have someone make a statement about him
2. Truth
a. The D normally bears the burden of proving that the statement was true to get off the
hook.
b. Truth is an affirmative defense to a common-law defamation claim
3. Absolute Privilege
a. Three situations where people are absolutely privileged to defame others even if they
made those statements intentionally or even if they made them out of malice or spite
i. Statements made during judicial proceedings
ii. Statements made during legislative proceedings
iii. Communications between spouses
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4. Qualified Privilege (don't see often)
a. Can make a defamatory statement during any legitimate public debate OR
b. To serve the interest of the person receiving the information (most common)
i. Reference letter - qualified privilege to speak on her character - cannot lie, use
malice or spite
Constitutional Limitations
Superimposed on common law defamation by the Supreme Court
First Amendment Principals that apply to defamation - it prohibits the government from restricting
speech
Generalizing: 1st Amendment will protect uninhibited, and downright nasty speech, on matters of
public concern
RE: Public concern, the SC has added two elements to the P's prima facie case that makes the case
much more difficult to prove.
Two Additional Elements:
1. P must prove that the statement was indeed false (FALSITY)
2. P must prove some level of fault regarding the D's knowledge of whether the statement was
true or false
a. Fault: Degree of fault that P must prove depends on whether we categorize the P as a
public person or private person
i. Public Person - must prove that the D either knew her statement was false
(falsity) or had reckless disregard of the truth. Must prove ACTUAL MALICE
1. Two types of people are public people:
a. Public officials
b. Public figures
2. Elements: Falsity & Actual Malice
ii. Private Person - must prove both falsity and then fault amounting to at least
negligence
•
•
•
Everybody must prove falsity
Public person also must prove actual malice
Private person also must prove fault amounting to at least negligence
DAMAGES Under the first amendment
A jury is NOT allowed to presume special damages - the P must prove that monetary damages have
occurred.
INVASION OF PRIVACY
Has four very separate tort law causes of action.
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Causes of action
Appropriation
1. Occurs when a D uses a P's name, image, or likeness for commercial advantage without
permission
2. Only actionable if you're dealing with advertising, promotional, or labeling uses of some sort.
a. Newsworthy use is not actionable
Intrusion
1. Interfering with the P's seclusion in a way that would be highly offensive to a reasonable person
a. Camera, microphone, etc.
2. Tricky fact pattern: paparazzi - can you sue the photographers? NO.
a. A celebrity does not have an expectation of privacy in the public
b. Must be where you expect privacy to use this claim.
False Light
1. Widespread information about someone that is in some ways inaccurate, disseminated in a way
that would be highly offensive to a reasonable person
a. Almost but not quite defamation - just telling a false story
Public Disclosure of Private Facts
1. Widespread dissemination of accurate information that would normally be confidential, done in
a way that is highly offensive to a reasonable person
a. General public does not have any legitimate interest in the facts
2. EXCEPTION: If there is legitimate public interest in the information, then we have a 1st
amendment privilege despite the common law tort
DEFENSES
Consent
If you give permission in any of the 4 categories, there is no cause of action.
Absolute and Qualified Privileges
For FALSE LIGHT and PUBLIC DISCLOSURE only!
Absolute Privilege
1. Three situations where people are absolutely privileged to defame others even if they made
those statements intentionally or even if they made them out of malice or spite
a. Statements made during judicial proceedings
b. Statements made during legislative proceedings
c. Communications between spouses
Qualified Privilege (don't see often)
1. Can make a defamatory statement during any legitimate public debate OR
2. To serve the interest of the person receiving the information (most common)
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a. e.g., reference letter - qualified privilege to speak on her character - cannot lie, use malice,
or spite
Negligence
Elements:
1. Duty
2. Breach
3. Causation (actual and proximate)
4. Damages
Duty
The law takes the view that whenever we act in this world, we are imposing some risk of harm on
people around us. The degree of risk depends on the activity in which you engage.
Before you act, you've got to take some precautions to reduce risk.
1. To whom do you owe a duty of care?
a. Majority: To all people who are foreseeable victims of your failure to take precaution, in
or around the area where you act.
i. Almost everybody is a foreseeable victim UNLESS
ii. The D can anticipate that his conduct would cause harm to someone far removed
from the situation
b. Minority: To the world at large, regardless of whether the P is a foreseeable victim
2. How much care? How many precautions must you take?
a. You must take the amount of care that would be taken by a reasonably prudent person
under the same or similar circumstances
Reasonably prudent person is sharply defined - the reasonably prudent person is the biggest nerd
you've ever met. Always follows all rules. Bears no resemblance to us so our defendant's often come up
short. That standard is objective and rigid and not kind to the defendant.
What if the D has superior skill or expertise?
What would an individual with the same skill or expertise do in that situation?
What if the D has a physical disability?
What would a reasonably prudent blind person do in that situation?
Special Duty Standards:
1. Children
a. A child must exercise the degree of care that a reasonable child of like same age,
intelligence, and experience. (Usually above 5 years old.)
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i. Much more subjective than the reasonable person standard
b. EXCEPTION
i. Will be held to reasonable person standard if engaged in an adult activity (usually a
motor vehicle situation).
2. Professional Malpractice Cases
a. A person who holds herself out as a learned professional, required to both possess and
exercise the knowledge and skill of an ordinary member of that profession in good
standing.
i. The profession itself vs the community at large is setting the standard - usually
established by an expert witness unless they screw up so badly that anyone can
tell that happened.
ii. TRICKY FACT PATTERN: Doctrine of Informed Consent
1. If the doctor treats without getting informed consent, then the doc might
be liable for negligence
3. Owners and Occupiers of Land
a. Duty owed by an owner or occupier of land when someone is injured on their property.
i. Any kind of real estate can trigger the application of these rules
Injured Entrant
Injuries Due to
Activity on Land
Injuries Due to
Static Condition on Land
Undiscovered Trespasser
No Duty
No Duty
Discovered Trespasser
Reasonable Care
Owe a duty to protect against artificial,
highly dangerous, concealed, and known to
the owner/occupier of land
(Man Made Death Traps)
*Man Made = Artificial
*Death = Highly Dangerous
*Traps = Concealed
AND know about it as owner/occupier of
land
Licensee
(social guest - we like them)
**Includes police/fire
Reasonable Care
Concealed condition and known to the
owner/occupier of land - supposed to do
something to make sure no one gets
harmed. Man-made and natural. Highly
dangerous and moderately dangerous.
Invitee
(anyone who comes onto
land that is held open to the
public at large)
Reasonable Care
Reasonable Care
Concealed and knew about it or could have
learned about by reasonable inspection.
*Owe Invitees the most protection of any
entrant. Owe a duty to inspect.
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Two tips:
1. In a case due to static condition - D can make it safe OR give a warning
2. Involves a child trespasser who is injured - children cannot protect themselves - standard of
care is always reasonable care (i.e., Attractive Nuisance Doctrine) - use common sense factors.
a. can owner/occupier anticipate that children might be on the property?
b. can the children anticipate that the conditions on land would pose a danger to him/her?
Different Duty Analysis Situations
1. Negligence Per Se = Using a statute to set the duty standard of care
a. Two-part test:
i. Class of Persons = P must show that the statute is designed to protect a class of
persons of which he/she is a part
ii. Class of Risk = P must show that the statute is designed to protect against the
type of harm that occurred in his/her case.
If you are attempting to borrow a statute but you can't, you do not automatically lose your
lawsuit, you can still use reasonable person standard.
EXCEPTIONS:
1. If compliance with the statute would be more dangerous than violating the statute, then
the violation will be excused.
2. If compliance is impossible, the statutory violation will be excused.
2. No Duty to Rescue Rule = when you choose to act, you must take precaution, but you do NOT
have to act.
EXCEPTIONS:
1. If the D put the person in peril, then the D does have an affirmative duty to act
2. If there is a strong relationship between the parties
i. Close family relationship triggers a duty to rescue
ii. Common carrier or inn keeper relationship (where the P is a guest)
iii. Invitee/Invitor relationship
3. Some situations where you owe a duty of care to stop someone else (a 3rd person) from
injuring the P
i. Only if the D has both the actual ability and authority to control the 3rd party
1. Parent/toddler
3. Negligent Infliction of Emotional Distress = normally do NOT need to invest in precautions
to avoid upsetting other people
MAJOR EXCEPTIONS:
1. If you are exposed to physical risk by the D's negligence and then if you later suffer
physical manifestations from the distress, you can pursue a NIED claim.
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i.
Zone of Danger Rule
1. Must be a near miss situations - only the near miss P is allowed to go
forward
2. A bystander to an accident can recover for NIED, even if she's outside the zone of
danger if she is at the scene of the accident and is a close family member with the
victim
Breach
To prove breach of duty, normally must point to specific conduct that is alleged to violate the duty
standard.
How do we establish that certain conduct is sufficiently bad to violate the duty standard?
1. Evidence of Custom
a. P tries to show that everybody in the world, except the D followed a particular
precaution. OR
b. The D tries to argue that nobody in the world follows the precaution the P says he should
have observed
What is the admissibility and weight of this custom evidence?
It is always admissible, but it is never conclusive
2. Res Ipsa Loquitor - if you can't prove the specific bad conduct
a. Used by desperate P's who don't know what happened
b. Prove two substitute facts instead:
i. Prove to us that the event that occurred does not normally occur in the absence of
negligence
1. Usually requires expert testimony
ii. Also, must show that any negligence would have been attributable to the D
1. The D had exclusive control over the injury causing instrumentality
(everything in D's control)
What does it mean when we allow the D to go forward with Res Ipsa Loquitor? P gets to jury does not mean P wins lawsuit.
Causation
Actual Cause (cause in fact)
Common sense notion - asks the P how it is that her injury is linked up to the D's conduct.
"But for" test - "but for" the D's negligence, the harm would not have happened.
Multiple D's - Alternative Tests
1. Substantial Factor Test
a. Multiple D's and a co-mingled cause
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b. We ask whether the conduct of each D was a substantial factor that brought about the
P's harm
2. Shifting the Burden of Proof
a. Multiple D's and an unknown cause (like death penalty - who pulled the trigger)
b. Burden of Proof is on D instead of P
i. Either D could be liable for the entire cause of the harm
Proximate Cause (legal causation)
Mechanism we use to limit the scope of liability
Throw a rock in a pond - ripples until it reaches land. Proximate cause - only liable for ripples right near
where the rock landed.
Only liable for those harms that are within the risk of your own activity.
Look back at the D's conduct - ask yourself, why did I label that negligent in the first place - what was I
worried would happen. If there is a match, the harm is within the risk, then it there is proximate cause.
If there is not a match, no proximate cause so no liability.
Direct Cause Fact Pattern
Nothing happens between what the D did and the P's ultimate injury. Nothing intervenes.
Focus in on the result that occurred - if it's foreseeable, then we have proximate cause and likely
liability.
Indirect Cause Fact Pattern - Intervening Cause
D acts, then something/someone else comes along and acts, and only after the subsequent action
does our P get hurt.
Two Variables:
1. Was the intervening event foreseeable? Yes or no.
2. Was the ultimate outcome foreseeable? Yes or no.
Gives us 4 scenarios:
1. A foreseeable intervening event leading to a foreseeable outcome
a. Plaintiff will win - everything is foreseeable
2. An unforeseeable intervening event leading to an unforeseeable outcome.
a. P will lose - everything that occurred is outside the scope of risk
3. A foreseeable intervening event leading to an unforeseeable outcome.
4. An unforeseeable intervening event leading to a foreseeable outcome.
Set outcomes for four intervening causes will always make the original D liable:
1. Subsequent medical malpractice is always considered foreseeable - will not limit liability
2. Negligent rescue is always considered foreseeable - will not limit liability
3. Reaction forces are always considered foreseeable - will not limit liability (think crowds)
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4. Subsequent diseases and accidents will always be considered foreseeable - will not limit
liability.
Other intervening causes that will not cut off liability, if you see facts making it likely that they are
foreseeable to the D.
1. Negligence of a third party
a. There are some situations where it is impossible to anticipate that others will be
negligent where your original negligent conduct is deemed blame-worthy precisely
because it exposes someone to the risk of third-party negligence. D will be responsible.
2. Criminal conduct of a third party
a. If D's original negligent conduct allows a criminal to commit a crime, the D will be
responsible
3. Act of God
a. If it is foreseeable to the D (hearing weather reports, etc.) will be responsible
Damages
In most negligence actions, a P will have suffered some property damage and/or some physical injury.
Physical Injury (personal injury) damages - three categories:
1. Past and future medical expenses
2. Past and future lost income
3. P's pain and suffering
P must mitigate damages where possible.
Twist: Eggshell/Skull Plaintiff Principal
- for purposes of damages, you take your P as you find your P
Defenses
Contributory Negligence
(Been abolished in all but a handful of states.)
A P's failure to use the relevant degree of care for his/her own safety.
P loses the lawsuit and recovers nothing. Absolute bar to recovery.
Ameliorating doctrines is what Common Law took on to make this less harsh:
1. Doctrine of Last Clear Chance - a P can recovery despite her contributory negligence if the D
had the last clear chance to avoid the accident but failed to do so
a. Most cases don't work this way.
Assumption of the Risk
Express assumption of the risk - words and quotation marks where someone agrees to expose
themselves to the possibility of getting hurt. (Usually recreational activity.)
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Consequence: bar from recovery.
Implied assumption of the risk - knowing and voluntarily taking on the assumption of the risk.
If you are acting in an emergency, you are not assumed to take the risk
Consequence: comparative fault
Comparative Fault
Will reduce recovery rather than leading to an absolute bar to recovery.
1. Pure comparative negligence
a. The P will always recover something, even if the P is the predominant negligent actor
2. Modified comparative negligence
a. The P's recovery will be proportionally reduced up to a threshold where the P's fault
reaches 49 or 50%. Once the threshold is reached, the P is barred from recovery.
Strict Liability
AKA: Liability without fault
Even if you acted with all due care
Strict Liability for Harm Caused by Animals
Strictly liable for property damage caused by animals.
Domesticated animals
No strict liability unless you knew of the animals’ dangerous propensities in advance
Wild Animals
Strictly liable so long as the P doesn't knowingly and voluntarily to contribute to her own harm
(sticking arm in lion's mouth)
Strict Liability for Conduct of Abnormally Dangerous Activities
Abnormally dangerous activity
1. Activity that is incapable of being conducted, except with high risk (residual risk of significant
proportion)
a. Cannot be made safe
2. If the harm does occur, it is likely to be severe (grave disaster)
3. Uncommon in the community where it takes place
Examples: blasting of explosives, toxic chemicals, nuclear energy
Any precautions taken by the D are irrelevant - liability without fault
Qualification: proximate cause continues to operate as a limitation to liability in a strict liability action.
The principle that the harm must be within the risk, that continues to limit liability. That means that
the strict liability rule is only going to apply to those things that caused us to label the activity
abnormally dangerous in the first place.
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Products Liability
Product-related injury
Can also sue on a negligence theory or a breach of warranty theory
Elements:
1. Merchant Seller: P must prove that the D is a merchant of the goods involved.
a. Merchant seller = manufacturer, a wholesaler, or a retailer of goods
i. No requirement that the P interact with the D at any point
2. Product Defect: P must prove that the product is defective
a. Manufacturing defect
i. Means that the product that hurt the P is different in some way is different than
the other products that came from the same seller.
1. Difference between the product at hand coming from the same seller is
dangerous in some way (different in a dangerous way)
b. Design defect
i. Common to every unit coming from that seller
1. Reasonable alternative design exists - cost effective way to make that
product safer without changing its utility but they failed to do it.
c. Failure to adequately warn defect
i. An adequate warning will usually insulate a defendant from a strict products
liability claim.
a. Many courts look at a failure to warn as a defect in and of itself.
3. Same Condition: P must prove defect existed when it left the hands of the seller
a. Here the law indulges in a presumption.
i. If you can prove that the product at least moved in ordinary channels of
distribution, that's going to give rise to a presumption that the defect existed
when it left the defendant's hands
1. Basically, giving the P the benefit of the doubt
4. Foreseeable Use: P must show that she was making a foreseeable use of the product.
a. Foreseeable use is not the same as intended use
i. The requirement that a product be used in a foreseeable manner is not limited to
the intended uses of the product itself (i.e., somewhat peculiar uses of a product
should not be a reason to deny a P recovery.
Defenses
The laws distinguish between conduct that is careless on one hand and knowing on the other
1. Traditional contributory negligence is NOT a defense
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a. Traditionally, it is no defense to say that the P has been negligent (careless conduct) in
the way she has handled the product.
2. Traditional assumption of the risk IS a defense
a. Conduct of a knowing sort, a demonstration that the P knew about the product's hazards
but foolishly encountered them nonetheless has traditionally been a defense.
POINT: a majority of states that now apply comparative negligence principals as a defense
system to negligence, do apply those principals to strict products liability claims. So, a P's
negligence might reduce the amount of recovery in a strict products liability claim though not
necessarily eliminate it.
Additional Note:
1. If the use of a product is merely incidental to the performance of a service, then strict
liability is not available as a theory. Must use negligence.
Nuisance
Public Nuisance
Conduct that causes physical or moral harm to the public at large.
e.g., Prostitution establishment, dumping in waterways, etc.
In some cases, a private citizen can bring a claim when they suffer a harm that is different in nature
from the public at large.
Private Nuisance
Conduct that causes a substantial and unreasonable interference with the use and enjoyment of
land.
Look for substantial interference by D - vibrations from a nearby factory, or interference that harms an
occupant - a neighbor's howling dog.
Does require reasonableness so if someone is bothered by noise who has unusually sensitive ears,
that's not going to count.
Frequently litigated issue in this area is remedies… enjoin (order the D to stop) the D's activities. A
court will weigh the equities
Vicarious Liability
Someone goes out and harms the P and there is someone who is passive, not involved at all, but liability
will be imposed on the 2nd person.
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Do this if there is a sufficiently strong relationship between the parties to shift the liability
1. Employment relationship - employer and employee
a. An employer is vicariously liable for the torts of her employees only if those torts were
committed within the scope of employment
i. Frolic or detour rule
1. Minor detour from the course of work, still use vicarious liability
2. Major departure from the course of work vicarious liability will not apply
ii. Intentional Torts
1. Employer is NOT vicarious liable for an employee's intentional torts
a. Exceptions:
i. Job involves violence (bouncer)
ii. Job creates a lot of controversy (debt collector)
iii. Independent Contractor
1. Vicarious liability almost never applies
a. Exceptions:
i. Independent contractor is hired to perform an inherently
dangerous activity
ii. Public policy dictates the shifting of liability.
Non-delegable duty - and Invitor cannot isolate himself from
invitee
2. Owner of a car/Driver of a car
a. No vicarious liability for loaning out car.
i. Conceptual exception
1. If I lend you my car to perform an errand for me, then I become your
principal and you are the agent. I will be responsible for what you have
done.
3. Parent and Child
a. No vicarious liability - parents are not generally vicariously liable for their kids.
Multiple Tortfeasors
Joint and Several Liability
Any one of multiple D's can be responsible for the full amount of the P's harm
When joint and several liability applies:
1. Two or more tortfeasors act in concert
2. Multiple defendants cause a single but indivisible harm
Adjustment of rights between multiple D's
1. Indemnity
a. Grossly disproportionate liability - passive vs active tortfeasors
i. 100% complete reimbursement
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2. Contribution
a. Each tortfeasor was an active participant in the P's harm
i. The paying D could recover back a proportionate share of the damages
Survival and Wrongful Death
These are not separate tort law of action, just titles for when the P died.
Wrongful Death
1. Brought by a beneficiary, usually a surviving spouse or child, for their own loss of support
and companionship the deceased might have provided
a. Still subject to any defenses that could have been raised had there not been a death in
the situation
Survival Claim
1. The claim that the deceased could have brought had she lived.
a. Claim is vested in the estate
b. Includes all the normal damage elements the deceased might have recovered
c. Subject to any defenses that could have been raised had there not been a death
Tort Law Immunity
Family Members
Situations where one family member sues another family member
Current majority rule: no more family immunity - can sue one another
Governmental Immunity
1. Governments have sovereign immunity against tort law actions
a. When engaging in discretionary governmental functions, immunity does apply unless it is
abrogated by statute.
b. Does NOT apply in situations where the government is involved in a proprietary action
(something a private person would normally do)
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