Intentional Torts
Negligence
Strict Liability
Assault/Battery/IIED
Includes Private/Public Nuisance
Wild Animals
Trespass to Chattel/Conversion
 And Trespass to Land 
Ultra Hazardous Activities
Intentional Torts
Assault: overt act that puts the plaintiff in reasonable apprehension that an immediate battery will occur w/ intent & causation
(1) Affirmative Voluntary Act (words alone insufficient)
(2) Intent (purpose or desire to cause apprehension; or attempted battery; or substantial certainty; or transferred intent)
(3) Volition (D's act was affirmative and voluntary)
(4) Causation (But for D's affirmative voluntary act P would not have been harmed)
(5) Reasonable apprehension of harmful or offensive contact, like battery or false imprisonment (Imminent; apparent ability to
carry out threat; P must be aware of threat; fear not necessary; exception: D knows of P’s timidity/susceptibility)
(6) To a Person Jaurez-Martinez: A party may not recover for an assault if his opponent was merely acting in self-defense.
Battery: direct or indirect harmful or offensive touching of plaintiff’s person with intent and causation
(1) Intent (D's purpose of desire was to cause the harmful or offensive contact or the apprehension of such contact [Subjective
state of mind]; or D knew that such contact was substantially certain to occur (Subjective state of mind); or Transferred intent.)
(2) Volition (D’s act was affirmative and voluntary)
(3) Causation (But for D's affirmative voluntary act P would not have been harmed)
(4) Harmful or Offensive Contact (Harmful to a person or Offensive to a reasonable sense of personal dignity)
(5) To a Person (Contact made to a person's body or something attached or closely associated)
Villa: Even without the intent to injure, a party may be guilty of battery and liable for any resulting injuries as long as the
actor intended to make harmful or offensive contact to the other. (substantial certainty)
White: Mentally disabled persons may be held liable for intentional torts but the factfinder must first conclude that the
actor intended to cause the offensive or harmful consequences of their act.
Ailiff: When an employer knows that injuries to employees are substantially certain to result from a certain process,
procedure, or condition, he is treated by the law as if he had in fact desired to produce the result.
Leichtman: Tobacco smoke as a particulate matter is capable of making offensive contact when deliberately used to
create discomfort, humiliation, and/or distress.
Hall: An actor is liable for battery if he acts intending to cause harmful or offensive contact with another, or the
apprehension of such contact, and instead makes harmful or offensive contact with an unrelated party.
Intentional Infliction of Emotional Harm:
(1) Outrageous conduct that exceeds the bounds of decency/socially tolerable conduct (Words alone may be sufficient.)
(2) Intent (purpose or desire to cause such harm; or substantial certainty; or recklessness; or conscious disregard of risk/alcorn)
(3) Volition (Affirmative voluntary act)
(4) Causation (But for causation)
(5) Emotional distress so severe that no reasonable person should be expected to endure it. (Intensity and duration factors;
evidence of significant emotional anguish [objective evidence not required but helpful]; directed at P or family members)
Dickens: A threat of future harm may be sufficient for a cause of action for IIED.
Swenson: Sexism and racism constitute outrageous conduct because of the impact on its victim.
Logan: A party may not recover under IIED for relatively trivial insults.
Brandon: Rude or abusive behavior that would normally not suffice for IIED can become sufficient if the defendant is
abusing a position of power or knows that the plaintiff is emotionally vulnerable at the time of the harmful conduct.
Trespass to Chattels: When a person is deprived of his property for a short period of time, or the property is damaged.
(1) Intentionally (a) dispossessing temporarily or (b) using or (c) intermeddling with the chattel of another
(2) D liable for damage or harm done to chattel (loss of use/rental value; condition, quality, or value impairment)
Conversion: When a person is deprived of his property for a lengthy period of time, or the property is lost or destroyed.
(1) Intentionally exercising dominion or control over a chattel that seriously interferes with owner's rights
(2) D liable for full value of chattel ("forced" sale concept) Arora: A cell line is considered a chattel capable of being converted.
(a: extent/duration of control,b: intent,c: good faith,d: extent/duration of interference,e: harm done,f: inconvenience/expense)
Intentional Tort Defenses: Consent
May be Express (i.e., objective; explicit statements) or Implied (i.e., apparent consent).
Vitiation of Defense: Exceeding Consent; or Fraud, Mistake, Duress; or (Strict Liability) Statute; or Incapacity.
Scope of Consent: Consequences that occur from the contact/conduct that were consented to fall within the scope of consent.
Hogan: Consent to sexual intercourse is not the equivalent of consent to be infected with a venereal disease. (exceeding)
Reavis: A threat of economic duress, e.g., threat of loss of employment, is not sufficient to invalidate the consent given.
Hellriegel: When a person consents to engage in horseplay they are also accepting the risk of any accidental injuries.
Self-Defense: Self-defense can be a complete defense to an intentional tort where the defendant (1) used reasonable force, (2)
that the defendant reasonably believed was necessary, (3) to prevent immediate harm. However, the defendant must actually
believe the force is necessary, and it must be found to be reasonably necessary from the reasonable person's perspective.
Defense of Others: Defense of others is a complete defense to an intentional tort where defendant goes to the aid of another.
Actual necessity: Some courts deny the defense where the initial person in jeopardy was not privileged to invoke self-defense.
These courts require that the intervener's conduct actually be necessary and that only reasonable force be exercised.
Apparent necessity: Other courts allow the defense of others where the intervention would appear necessary to a reasonable
person, even if it turns out to be mistaken. (May be applicable to both self-defense and defense of others.)
Bradley: For apparent necessity, each case is decided on its own facts, including the relative size, age, strength,
reputations for violence, who was the aggressor, the degree of physical harm reasonably feared, and weapons.
Defense of Property
Restatement § 77: Defense of property without deadly force may be used after an (1) unprivileged intrusion, (2) with a
reasonable belief that the intrusion can only be prevented/terminated by force, (3) after a request to stop entry when plausible,
(4) using reasonable force, (5) used to prevent/terminate the intrusion.
Exception for deadly force: One may employ deadly force within one’s home when: (1) one has a reasonable belief that the
intruder is likely to cause death or serious bodily harm, (2) to person, (3) unless expelled/excluded.
Katko: An actor may never defend his property with the use of traps capable of inflicting death or serious injury.
Necessity (Privilege to a trespass to property claim or an intentional tort against property)
Private (incomplete): May enter land if reasonable belief of necessity to prevent serious harm to actor, land, or chattel.
Public (complete - not liable for harm): May enter land if reasonable belief of necessity to avert imminent public disaster.
Rossi: One is privileged to enter land in the possession of another and recover injuries sustained therein if entry
reasonably appears to be necessary to prevent serious harm to the actor or his property.
Vincent: Private trespassers out of necessity are liable for property damage, but not nominal or punitive damages.
Eilers: If and when lawful alternatives become available, one’s actions are no longer justified by necessity.
Negligence
(1) Duty/legal obligation to exercise reasonable care to avoid the risk of harming persons or property As a general rule,
persons have a duty 2 use due care to avoid injury to others & may be held liable if their careless conduct injures another person
Rudolph: Like drivers on roadways, a user of a lake has a duty of care to avoid injuring other users of the lake.
Limited Duty to Assist or Rescue
Yania: The law imposes no duty to rescue or provide assistance absent a legal responsibility for P’s dangerous position.
Exceptions: (1) Special, legally significant, relationship, (2) voluntary assumption of duty, (3) innocent prior conduct that
results in harm, (4) reliance on gratuitous promise, (5) shielding/preventing aid by others, (6) statute.
Farwell: Two companions (e.g., friends) engaged in a common undertaking may constitute a special relationship.
Webstad: An illicit romantic relationship does not constitute a special relationship.
Limited Duty to take Protective Measures against Risks posed by Third Parties
Tarasoff: Mental health professionals have a duty to warn and protect identified third persons from violent threats.
Dunkle: There is no duty to protect a non-identifiable or non-foreseeable third party victim.
(2) Breach of Duty/conduct fell below level of care owed to plaintiff and was unreasonable under the circumstances
Standard of Care
Breach of Duty Analysis
1. RP: Reasonable prudent person under similar circumstances
Burden < Probability x Magnitude (BPL); Custom
2. Child unless engaged in adult or inherently dangerous activity Act unlike children of same age/maturity/exp./intelligence
3. Professional: custom is the standard of care
Deviation from custom; expert witness usually required
4. Statutes: terms of statutes become standard of care
Violation of statute; Evidence or Negligence per se
An actor must utilize not only those qualities and facilities which as a reasonable person he is required to have, but also
those superior qualities and facilities which he himself has. (Second Restatement of Torts § 298.)
A physically disabled person is held to the standard of a reasonable person with a like disability. In some situations, this
requires a physically disabled person to exercise greater care than would be required for physically able people.
Reasonable Person Standard of Care
Vaughan: Acting to the best of one’s judgment in good faith does not excuse an actor from the RP standard of care.
Reed: The mere fact one errs in judgment is not conclusive proof of a failure to meet the RP standard of care.
Risk Utility Analysis
Carroll Towing: Under Hand’s risk calculus, an actor is considered negligent if the burden of adequate precautions is less
than the probability of the risk happening multiplied by the gravity of the resulting injury.
McCarty: Precautions need to be of reasonable cost and efficacy to constitute negligence under the Hand formula.
The Relevance of Custom
Hagerman: Deviation or compliance with custom may be used as evidence for the reasonableness of one’s conduct.
Trimarco: If D deviates from customary practice, a jury may still find D’s conduct reasonable under the circumstances.
TJ Hooper: Compliance with customary practice does not necessarily excuse the omission of an imperative precaution.
Miscellaneous
Kappelman: The fact a motorist has no license is irrelevant to determining his negligence liability.
Bashi: Sudden mental illness does not excuse an actor from the RP standard of care like a physical illness does.
Smith: Attorney SoC includes duty to conduct reasonable investigation of applicable law b4 providing client w/ advice.
Child Standard of Care (Common law = under 7, no negligence)
Robinson: The operation of powerful mechanized vehicles, like a snowmobile, is an inherently dangerous activity.
Bauman: Violation of a relevant statute may only be considered evidence of a child’s negligence if a reasonable child of
same age, intelligence, maturity, and exp. would not have acted in violation of the statute under same circumstances.
Determining Statutory Relevance: (1) Was the plaintiff a member of the class of persons the legislature sought to protect?
(2) Was the harm suffered by P the type of harm the legislature sought to protect against? (Third Restatement of Torts § 14.)
Statutory Standard of Care Approaches: (1) Strict Negligence Per Se/No excuse permitted (minority); (2) Negligence Per Se/
Statutory violations creates presumption of breach but defendant may try to prove application of a specific acceptable excuse
(majority) or reasonableness under all of the circumstances (minority); (3) Evidence of Negligence/Standard of care remains the
reasonable person but defendant's violation of a relevant statute goes to jury as part of the breach determination.
Excuse Doctrines: (1) Incapacity; (2) No knowledge of occasion 4 compliance; (3) Inability after reasonable diligence to comply
(4) Emergency; (5) Compliance involves greater risks; (6) Reasonableness under all the circumstances (minority)
Edwards: A person confronted with an emergency which gives rise to a reasonable apprehension of danger of serious
and immediate injury is not held to the standard of care required of one acting in an atmosphere of calm detachment.
Foster: Failure to obey the law is excusable when confronted with an emergency not of the defendant's own making.
P’s burden for non-statute proof of breach: (a) direct or circumstantial evidence, (b) constructive knowledge, (c) res ipsa loquitur
Clark: A storekeeper is liable for injury resulting from an unsafe condition if it has existed for a sufficient length of time
so that he should have had knowledge of it. (circumstantial evidence)
Res Ipsa Loquitur (liability resting solely on the type of accident): To apply res ipsa loquitur as proof of breach, the following
elements must be present: (1) the accident must be of a type that normally would not occur in the absence of negligence [proof:
(a) facts of accident, (b) common knowledge, (c) common sense, (d) experts]; (2) with no contribution by the plaintiff or any
third party to the plaintiff’s injuries; and (3) the source of the negligence must fall within the scope of the duty owed by the
defendant to the plaintiff [proof: (a) evidence of the defendant's exclusive control, if possible, (b) evidence that negligence likely
occurred when instrumentality was under the control of the defendant, (c) disprove the possible negligence of third parties, (d)
remove the plaintiff as a possible contributor (or at least less than 50% responsible in comparative negligence).
Ybarra: Neither the number nor the relationship of the defendants alone determines whether the RIL doctrine applies.
(3) Causation (Cause-In-Fact)/causal connection between D’s unreasonable conduct & P’s harm [But For|Substantial Factor]
But For and Substantial Factor Tests
Sowles: Defendant not liable if by the exercise of due care he could not have prevented the accident from occurring.
Grimstad: To be liable for negligence the cause of the accident must be more than pure conjecture and speculation.
Proof of Causation
Ingersoll: The most likely cause does not need to be the only possible cause in order to for P to establish causation.
Zuchowicz: The mere possibility that injury may have happened w/o negligence is not enough to destroy causation.
Williams: In premises security cases, P must prove assailant was an intruder in order to prove causation.
For multiple tortfeasors, the traditional rule is apportionment of liability based on the contributions of the defendants. However,
joint & several liability may override apportionment efforts in certain circumstances, such as for (1) a true joint tort
arising from a concert of action, (2) a principal’s vicarious liability for an agent, or (3) when the injury is indivisible.
Fugere: If there is more than one tortfeasor acting independently but their actions combine to create the harm to a
plaintiff then joint and several liability is imposed on each tortfeasor due to the indivisible nature of the harm.
Alternative Liability (Proving who caused the harm)
Summers: When there are two or more negligent actors before the court but only one is the actual cause of harm then
they are held jointly liable and the burden of proof shifts to the plaintiffs to prove who caused the harm.
Barron: All of the defendants must have acted tortiously in order to invoke the theory of alternative liability.
(4) Scope of Liability (Proximate Cause/Legal Cause)/were plaintiff and harm foreseeable? Intervening causes?
The common law test for scope of liability has three prongs: (1) Tortfeasor's conduct must have been a "substantial factor" in
bringing about the harm being complained of, (2) there is no rule or policy that should relieve the wrongdoer from liability
because of the manner in which the negligence has resulted in the harm, and (3) the harm giving rise to the action could have
reasonably been foreseen or anticipated by a person of ordinary intelligence and prudence. (McClenahan.)
Foresight Rule for P & Consequences / Exceptions: Medical Malpractice Complications Rule, Eggshell Plaintiff Rule, Rescuer Rule
Palsgraf: D owes a duty of care only to those plaintiffs who are in the reasonably foreseeable zone of danger.
McClenahan: The fact that an accident may be freakish does not per se make it unpredictable or unforeseen.
Juisti: As long as D’s negligence creates a reasonably foreseeable risk of the general kind of harm that befell the P, the
exact way or precise manner in which the harm occurs doesn’t matter for scope of liability.
Retarded Citizens: The negligence of the wrongdoer in causing the original injury is the proximate cause of the damages
flowing from the subsequent negligent or unskillful treatment.
Pace: Harm that occurs within the scope of the risk makes defendant liable for all harm caused, regardless of its extent.
Sears: If the actor's negligent conduct threatens harm to another's person, land, or chattels, the normal efforts of the
other or a third person to avert the threatened harm are not a superseding cause of harm resulting from such efforts.
Intervening Forces / Shifting Responsibility
If the realizable likelihood that a third person may intervene and act in a particular manner is the hazard or one of the hazards
which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious or criminal, does not prevent
the actor from being liable for harm caused thereby. (Second Restatement of Torts § 449.)
Price: While criminal or tortious third-party conduct typically severs the chain of proximate causation between a plaintiff
& defendant, the chain remains unbroken when the third party’s intervening intentional act is reasonably foreseeable.
Bigbee: Foreseeability is not to be measured by what is more probable than not, but includes whatever is likely enough
in the setting of modern life that a reasonably thoughtful person would take account of it in guiding practical conduct.
McLaughlin: Sometimes third-party intervening conduct, even though foreseeable, is so egregious that courts conclude
the third party alone is responsible and that his conduct supersedes the negligent conduct of the initial actor.
Defenses to negligence: contributory/comparative negligence by plaintiff; express assumption of risk (contractual in nature).
Assumption of Risk: To show implied assumption of the risk, the defendant traditionally must present evidence that the plaintiff
had actual knowledge of the danger, understood and appreciated the risk, and voluntarily exposed himself to that risk.
However, many modern courts have determined that implied assumption of risk can actually be subdivided into (a) limited duty
rules, or primary assumption of the risk, and (b) contributory/comparative negligence, or secondary assumption of the risk.
(a) Cheong: An active sport participant breaches a legal duty of care to other participants only if he intentionally injures
another player or engages in conduct so reckless as to be outside the range of ordinary activity involved in the sport.
(b) Murray: Implied secondary assumption of risk is merged into the comparative fault scheme, and the trier of fact, in
apportioning the loss resulting from the injury, may consider the relative responsibility of the parties.
Trespass to Land: physical invasion of land by agent that involves interference with the exclusive right of possession of another
Creel: Every man who employs another to do an act which the employer appears to have a right to authorize him to do
undertakes to indemnify him for all such acts as would be lawful if the employer had the authority he pretends to have.
Indemnity shifts the entire burden of loss from one party to another. (actual & substantial damage to land)
Stukes: Intent to enter the property is all that is required, not intent to harm/trespass; Mistake not defense.
Nuisance: If invasion transitory/particles dissipate quickly (i.e., air & water pollution, noise, bad odors) then trespass is nuisance
Bradley: Trespass can be defined as any intentional invasion of the plaintiff's interest in the exclusive possession of
property, whereas a nuisance requires a substantial and unreasonable interference with his use and enjoyment of it.
Rankin: Interference with the use and enjoyment of property may not solely be based on an emotional response.
Prah: When a landowner uses solar energy, and a new structure will unreasonably interfere with his use and enjoyment
of his solar-powered property, the construction of the new structure is considered a private nuisance.
Vogel: Excessive levels of stray voltage may invade a person's private use and enjoyment to land.
Boomer: No injunction where the loss recoverable is insignificant as compared with the cost of removal of the nuisance.
Public nuisance: Unreasonable interference with a right common to the general public (i.e., no property right involved).
Unreasonable interference includes significant interference with public health, public safety, public peace, public comfort, or the
public convenience; or conduct proscribed by statute, ordinance, or administrative regulation; or continuing nature of conduct
or production of permanent long-lasting effect & as actor knows or has reason to know, has significant effect on the public right.
Penn SPCA: A statute that is declarative of public policy may be used as evidence of a public nuisance.
Strict Liability: Wild Animals: applies to harm caused by lions, snakes, monkeys & trespassing livestock (e.g., cattle) not pets
Abnormally Dangerous Activities: Rest. 2d: (a) high degree of risk of harm to person, land or chattels of others; (b) likelihood
that the harm will be great; (c) risk cannot be eliminated by exercise of reasonable care; (d) common usage; (e)
inappropriateness place for activity; (f) value to community v. dangerous attributes. Rest 3rd: Activity creates a foreseeable and
highly significant risk of physical harm even when reasonable care exercised by all actors, & Activity is not one of common usage.
e.g., blasting, fumigation, crop-dusting, storage of flammable liquids and explosives, and impoundment of water.
Klein: Intervening acts of third persons serve to relieve the defendant from strict liability for abnormally dangerous
activities only if those acts were unforeseeable in relation to the extraordinary risk created by the activity.
Defenses to Strict Liability: Express assumption of risk, comparative negligence, scope of liability (Foreseeable P & Injury)