Intentional Torts Attack Sheet
Intent: ∆ desired the legally forbidden consequence or knew the consequence was sure to result
 Transferred intent: D intends to commit a tort against one person but instead commits diff tort
against same person; same tort against diff person, or diff tort against a diff person. ONLY
applies where both torts are assault, battery, false imprisonment, trespass to land/chattel or
trespass to chattels
Intentional Torts
Battery: Harmful or offensive (not consented to) contact w/ π’s person with intent and causation.
(includes anything connected to P)
 Contact may be indirect (i.e. placing a trap for P)
 Offensive – would not be permitted by a person of ordinary sensitivity (objective, RP standard)
 Damages are not required, even a benefit is ok
Assault: Act by D creating reasonable apprehension (awareness, not just fear) in π of immediate battery,
with intent and causation
 Apparent ability required
 Mere words are insufficient (overt conduct required) BUT words can negate reasonable
apprehension
False Imprisonment: Act or omission that confines or restrains π to a bounded area, with intent and
causation. π can recover from emotional distress
 Sufficient force: Yes  physical barrier, force, threats of force (RP standard), failure to release
when under a duty to do so, invalid use of legal authority; Not  Moral pressure or future threats
 Adequate restraint: π must know of confinement OR be harmed. Freedom must be limited from
all directions w/ no reasonable means to escape known to π (not disgusting, dangerous or secret)
 Shopkeeper’s privilege: Ok if reasonable detention, in a reasonable manner (no deadly force),
for a reasonable amount of time to investigate
IIED: Extreme & outrageous conduct, causing severe emotional distress, made intentionally or recklessly
 Conduct: Must exceed all bounds of decency tolerated in a civilized society, not mere insults.
Look to factors such as whether the Continuous and ongoing conduct, π was in a fragile class
(kid, elderly, pregnant), or where ∆ was a common carrier
 Bystander IIED: π was present; was a close relative; and ∆ knew
Trespass to Land: Intentional physical invasion of real property (including soil and airspace). Intent is
for the act, not to trespass
Trespass to Chattel v. Conversion: Interference with π’s interest/right of possession in a chattel and
there are damages
 Difference: Conversion = substantial interference; full market value at time of conversion (forced
sale) v. Trespass = slight interference; cost to repair or rental value for loss of use
Defenses to Intentional Torts:
Consent: Valid (capacity) & ∆ stayed w/in bounds. Express (no duress) or implied (custom, body
language, or implied if necessary to save a life/emergency)
Self-Defense: Threat in progress or imminent, ∆ must have a reasonable believe that threat was genuine
(reasonable mistake ok), and ∆ must use reasonable/proportionate force (deadly force or mechanical
device NOT ok to protect property)
Privilege of Arrest:
 Felony arrest by PO = Reasonable belief that felony has been committed and that person arrested
committed it
 Felony arrest by citizen = Felony actually occurred & ∆ had a reasonable belief that person
arrested actually committed it (force ok for a felony arrest, but only what is necessary, including
deadly force if suspect poses threat of serious harm;
 Misdemeanor arrest = Breach of the peace committed in the presence of the arresting party. No
deadly force allowed!
Recapture of Chattel: ∆ can only recapture chattel from TF or a 3P who knows/should know that
chattels were tortuously obtained
 Force: Only ok if in hot pursuit of the someone who obtained the chattel wrongfully. Before using
force, ∆ must make a timely demand to return chattel, unless futile. If the chattel was lent to
someone, or ∆ left it in π’s possession, ∆ can’t use force (only peaceful means!)
 Entry on Land: If chattel is on
o TF’s land  ∆ can enter to recapture at a reasonable time and in a reasonable manner
o Innocent party’s land  Same requirements plus ∆ must give notice to landowner of the
presence of the chattel and he refused to return it (∆ is liable for any damages caused by
entry).
o Owner himself is at fault  NO privilege to enter
Necessity: Interference with real or personal property to avoid a greater harm. As long as emergency
continues, P cannot expel D from land
 Public (to protect community/large grp) – absolute defense/no legal liability
 Private (to protect self, family or one member of the community) – limited defense/ Actual
damages or harm only (no nominal/punitive); actor must pay for any injury he causes
Discipline: A parent or teacher may use reasonable force to discipline a child
Harm to Economic/Dignitary Interests
Defamation: Defamatory language about the π, that was published to a 3P (intentionally or negligently),
and caused damage to π’s reputation (presumed for libel and or slander per se).
 Matter of public concern: π must also prove constitutional elements of falsity and fault (Actual
malice for a public figure; negligence for private citizen)
 Defenses: Consent, truth (use IIED or invasion of privacy instead), absolute privilege (spouse or
government official/proceeding, even if there is malice), or qualified privilege (public interest –
GF bad review, letter of recommendation, statement to police, etc.)
Invasion of Right to Privacy: For all of these torts, Emotional distress and mental anguish are sufficient
damages – consider IIED as well
 Appropriation: Unauthorized use of π’s picture or name or likeness for commercial advantage
(ad, packaging, etc.). Newsworthiness exception
 Intrusion: Invasion of π’s seclusion (photo, wiretapping, etc.) in a way that would be highly
offensive to a RP, in a location where π has a reasonable expectation of privacy (not in public)
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False light: Widespread dissemination of a material falsehood about π’s activities/beliefs that
would be highly offensive to a RP (overlap w/ defamation, but this is easier to prove because you
need not prove damage to reputation)
Public disclosure of private facts: Widespread dissemination of private info, that would be highly
offensive to a RP; ∆ may be liable even if true (“gossip tort”). Newsworthiness exception applies
to disclosures about public figures (protected by 1A)
Defenses: Consent, privileges (applies ONLY to false light and disclosure)
Misrepresentation:
 Intentional: (1) Misrepresentation of a material fact, (2) ∆ knew or believed was false, (3) ∆
intended to induce π’s reliance, (4) it did cause reliance; (5) reliance was justified, and (6) π
suffered actual pecuniary damages  NO DEFENSES
 Negligent: Misrepresentation made by ∆ in a professional, commercial setting, and made to the
particular π
Interference w/ Business Interest or Prospective Advantage: There was a valid K or business
expectancy, which ∆ knew about, and intentionally interfered with (intended to induce breach or
terminate relationship), and which caused actual damages
 Defenses: ∆’s conduct is privileged if it was a proper attempt by a competitor to obtain business
or protect its interests, using commercially acceptable means of persuasion (privilege to compete)
Negligence
Prima Facie Case: A ∆ is negligence if π establishes by a preponderance of the evidence
 (1) Duty: ∆ owes a duty to all foreseeable πs, who are those w/in the foreseeable zone of danger
o Rescuers: Always foreseeable – “danger invites rescue” (firefighter exception)
o Prenatal Injuries: Doc owes duty to diagnose defects. Parents can sue for wrongful
birth/pregnancy (no recovery for cost of raising kid); kid can’t sue for wrongful life
 ***Setting the SOC: ∆ has a duty to act as RP under the circumstances (objective test),
including using any special knowledge or skill or physical characteristics
o Professionals: Same SOC as average member of the same profession. If they knew of a
better way and didn’t use it, there is a breach
o Doctors: Call an expert to establish what the SOC is in the industry; includes a duty to
disclose risks and allow π to give informed consent
o Children: Same SOC as a child of like age, education, intelligence and experience, unless
engaged in an “adult activity,” in which case the regular RP standard applies
o Common Carries: Higher SOC, slight negligence is enough
o Landowners: Look to status (some modern statutes reject these and use RP standard). ∆
can satisfy this duty by either eliminating the hazard OR posting a warning, unless danger
is super “obvious” (more than merely visable)
 Undiscovered TPs – No duty
 Discovered/anticipated TPs – Conduct activities as a RP; and protect against
known, man-made death traps (artificial, highly dangerous, concealed defects
that ∆ knew about)
 Licensees (social guests) – Conduct activities as a RP would; and protect against
all known traps (concealed defects that ∆ knew about, no duty to inspect)
 Invitees (paying customers) – Conduct activities as a RP; and protect against
reasonably knowable traps (concealed and known or which ∆ could have
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discovered thru reasonable inspection), unless π acts outside the scope of
invitation, in which case they become an anticipated TP
 Attractive Nuisance – (1) ∆ knew/should have known of danger; (2) ∆
knew/should have known kids frequent area; (3) kid couldn’t appreciate the risk;
(4) Expense is slight compared to the magnitude of the risk
o Statutory SOC/Negligence per se: (1) π was within the protected class; and (2) statute
was designed to protect the type of harm suffered = proves duty AND breach
 Emergency: Violation excused if compliance would have caused greater harm
 Compliance: Does NOT establish due care
 Causation: Watch for violations that don’t cause the π’s injury!
o Affirmative Duties: No duty, unless (1) ∆ assumes a duty (starts giving aid). Watch for a
good Samaritan statute, which will protect doctor or nurse from anything but gross
negligence (don’t presume); or (2) ∆ created peril (must act reasonably, doesn’t have to
risk his own life); or (3) special relationship (i.e. parent/child; common carriers)
o Duty for NIED: Duty to avoid causing emotional distress where (1) ∆ is negligent; (2) π
was w/in the zone of danger (3) there was a “near miss”; but (4) π suffers physical
symptoms as a result of severe distress (not required if ∆ mishandled a corpse, false
report of a death, or misdiagnosed a patient w/ a terminal illness)
 Bystanders: ∆ acted negligently, and injures a 3P, causing π, who saw the
incident and is closely related to 3P, to become upset, which manifests into
physical symptoms
(2) Breach: ∆ breaches by falling short of established SOC – “π alleges that the unreasonable
conduct here was X. This is unreasonable because a reasonably prudent person in ∆’s position
would have done Y, but ∆ did Z.” Reasonableness/breach is a Q for the jury to determine
o Violation of statute: Negligence per se proves duty + breach
o NOT Custom: Compliance does NOT disprove breach because the whole industry could
be negligent
o Res Ispa Loquitor: The very occurrence of π’s accident proves breach if (1) the type of
injury does not normally occur absent negligence; (2) the negligence is attributable to ∆
(instrumentality was in ∆’s exclusive control) and (3) π was free from fault
 Effect: Proves duty + breach, but NO directed verdict for ∆. Jury can still reject
inference. BUT there is no presumption of negligence, and the burden NEVER
shifts to ∆
(3) Causation: ∆’s act or omission was both the actual and proximate cause of π’s injury
o Actual Cause: “But for” ∆’s conduct, π would not be have been injured.
 Joint Causes: ∆’s conduct was a substantial factor in causing π’s injury
 Alternative Causes: If there are two acts, one of which caused π’s injury, the
BOP shifts to the ∆’s to show the other one cause the injury
o Proximate Cause: ∆ is liable for all reasonably foreseeable consequences of his actions
(consider time, distance, and randomness of injury).
 Intervening Causes: ∆ is liable for foreseeable results caused by foreseeable
intervening forces
 YES  negligent medical treatment, negligent rescuer, injury occurs
trying to escape ∆’s negligence, subsequent disease
 NOT  3P crime, acts of god (unless foreseeable)
 Superseding Causes: ∆ is NOT liable for intervening forces that produce
unforeseeable results because causal chain is broken
(4) Damages: Damages are not presumed, and ∆ is liable for all damages, even if they are not
foreseeable (egg shell π theory)
Defenses to Negligence
Contributory Negligence (traditional, default rule): π was even partially liable for injury = complete bar
 ∆’s statutory violation: CN is not a defense if the statute was designed to protect π
 Last clear chance: ∆ can rebut, and last person could avoid accident and failed to do so is liable
Comparative Fault (modern rule): Pure comparative fault (∆’s liability is reduced by π’s % of liability);
Or partial comparative fault (if π’s fault is less than 50% it reduces recovery but if it is over 50% recovery
is barred)
Assumption of the Risk: π is denied recovery if π (1) knew the risk; and (2) voluntarily proceeded
(*usually a defense for SL)
Products Liability
Negligent Defective Product (applies to all sellers, commercial or casual, or suppliers): (1) Product was
in a defective condition, (2) was unreasonably dangerous to users (plus foreseeable bystanders); and (3)
the defect could have been corrected if a competent manufacturer had exercised reasonable care in its
quality control process. Failure to discover a defect when it was possible to do so shows a lack of
reasonable care.
SL Defective Product (applies only to commercial sellers – those who supply, distribute, sell or lease the
product to a customer – “stream of commerce”): (1) Product in a defective condition, (2) was
unreasonably dangerous to the users (plus foreseeable bystanders). Failure to inspect doesn’t matter here!
 Types: Manufacturing defect, design defect, failure to include an adequate warning
 Chain of Production: π can sue anyone in the chain, and ∆ will be held SL if product was
defective when it left its chain of command (control)
 Defenses: Unforeseeable misuse – it has to be REALLY unforeseeable; OR Assumption of Risk
Strict Liability (non-products)
SL Wild Animals (not farm animals, even if “dangerous” like a bull): An owner of a wild animal is
strictly liable for injuries caused by the animal as long as the injured π did not voluntarily bring about the
injury. ∆ is liable, even if the animal is really nice, not violent, etc. ∆ can’t domesticate them! π must
suffer an injury that is associated with the animals’ dangerous propensity OR if you are injured while
fleeing.
 Trespassers: SL not imposed in favor of an undiscovered trespasser against a LO unless LO
learns TP is on the land and fails to warn him of the animal
SL Abnormally Dangerous Activity: ∆ is liable if activity creates a foreseeable risk of serious harm
even if reasonable care is exercised AND it is not a matter of common usage in the community/area used
(ex. blasting, transporting chemicals, radiation)
Damages: For PL or SL damage must be to person or property, not purely economic
Nuisance
Private Nuisance: ∆ substantially, unreasonably interferes w/ π’s use and enjoyment of land– watch for a
hyper-sensitive. Balance the severity of the injury to π w/ utility of ∆’s conduct. Coming to the nuisance
is NOT a defense!
Public Nuisance: ∆’s act unreasonably interferes w/ the health, safety, or property rights of the
community (i.e. using building for criminal activities). Private π can only recover for unique damages.
Typically, money damages, injunction if balance of hardships
Defenses: Zoning ordinances allows behavior (not an absolute defense but persuasive); Conduct of others
(∆ only liable for the amount contributed – ex. multiple factories); or Coming to the nuisance (only a bar
if π moved solely to sue/harass ∆)
Vicarious Liability
ER/EE: Apply agency rules – P/A relationship and EE acted w/in scope (frolic v. detour). ***Don’t jump
to VL, first look to hold ER directly liable (negligent hiring, etc.). Intentional torts are typically outside
the scope, unless bouncer or ER directed EE to act. Independent contractors – not a P/A relationship
unless abnormally dangerous activity or π injured on premises (duty to invitee is non-delegable)
Car Driver/Owner: Owner NOT vicariously liable for torts of driver, unless some specific theory applies
(i.e. family car doctrine, permissive use statute [apply agency rules], or negligent entrustment)
Parent/Child: Parents are NOT liable for kid’s tort, but can be liable for their own negligence or if they
know the kid has dangerous propensities
Dram Shop Act: Not based on VL, but based on server’s own negligence in serving a minor or a super
drunk adult (foreseeable outcome)
Multiple ∆ Issues
Joint & Several Liability: Each ∆ is liable for the full amount, unless π’s injury is divisible (this doesn’t
matter if ∆’s acted in cohort). Watch for 50% or less statutes (like Article 16)
Satisfaction & Release: π can go after all ∆ until there is one full recovery (satisfaction). Release of one
∆ does not discharge others
Contribution & Indemnity: ∆1 can go after ∆2 for all or part of what they paid. Only applies to
negligence, not intentional torts
Derivative claims
Spouses and parents: Can bring loss of services and consortium claims against ∆, but it can be
reduced/barred by any defense ∆ has against main claim