Amy Gresh--T of C
Torts Outline
Table of Contents
I. INTENTIONAL TORTS (1-8)
A. Battery (1-2)
1. Harmful or offensive contact with a 3d person
2. Intent requirement: Defendant must intend to cause the P to: a) suffer that contact,
or b) suffer apprehension that contact is imminent.
a. Substantial certainty: If D believed that the result was substantially certain to
occur, he intended the contact.
3. Offensive Battery (1-2)
B. Assault (2-3)
1. Act done with intent that causes reasonable apprehension
2. Intent requirement
3. Words alone not sufficient (3)
4. Fear is not required (3)
C. Defenses (3-6)
1. Cont. negligence or assumption of risk not defenses to int. torts
2. Consent is a defense (3-4)
3. Insanity not a defense, but insane D must have intent (4)
4. Self-defense: reasonable force can be used (5)
5. Defense of 3d parties (5)
6. Defense of Property (5-6)
7. Necessity (5-6)
D. False Imprisonment (7)
E. Intentional Infliction of Emotional Distress (7-8)
F. Torts against Property (7-8)
1. Trespass to Land (8)
2. Conversion (8)
3. Trespass to Chattels (8)
II. STRICT LIABILITY VS. NEGLIGENCE (9-10)
A. Definitions (9)
B. Early cases: Rylands, Powell v. Fall (9-10)
III. NEGLIGENCE (10-18)
A. Elements of Negligence (10)
1. Duty of Care
2. Breach of Duty
3. Causation
4. Damages--P must show that he has suffered actual harm.
B. Reasonableness Standard (10-11)
C. Calculation of Risk (12)
1. Learned Hand Rule (12)
D. Customary Care (13)
1. Market Relationships
2. Plaintiff’s knowledge
3. Informed Consent cases
a. Duty to disclose when info. needed to make choice
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b. Causation requirement--P must show that his choice would be affected.
E. Violation of Criminal Statutes (14)
1. Osborne Principles:
a. Is the statute for the public safety?
b. Was the injured party meant to be protected by the statute?
c. Was the injury of the sort the statute meant to protect against?
2. Causation requirement still exists
3. Negligence per se vs. Presumption of negligence
F. Res ipsa loquitur: Circumstantial Proof (15)
IV. PLAINTIFF’S CONDUCT (16-20)
A. Contributory Negligence (16-17)
1. P’s standard of care: What would a reasonable person have done under same
circumstances?
2. P must have contributed to the accident.
3. Causal relation: Was the P’s negligence a substantial factor in bringing about the
harm? Rest. S. 465 (p. 332)
4. Doctrine of Avoidable Consequences (16)
5. Egg Shell Skull Rule: P is taken as he is found.
6. Doctrine of Last Clear Chance. Rest. S. 479 (p. 346)
7. Imputed Contributory Negligence (17)
a. Master-servant
b. Parent-child
c. Joint enterprise
B. Assumption of Risk (17-19)
1. Elements:
a. P must recognize and understand the particular risk or danger involved
b. P must have voluntarily chosen to encounter the risk
2. Primary Assumption of Risk--P has no prima facie case b/c D was not really
negligent.
3. Secondary Assumption of Risk--The D was negligent but his duty dissipates b/c P
assumed the risk.
a. Unreasonable Assumption of Risk--merges with contributory negligence
b. Reasonable Assumption of Risk
4. Contractual Assumption of Risk (19)
C. Comparative Fault (19-20)
1. Pure comparative negligence
2. Partial comparative negligence
3. Effect on other tort doctrines (19-20)
V. MULTIPLE DEFENDANTS (20-25)
A. Joint and Several Liability (20-21)
1. Indivisible vs. Divisible harms
2. Causal Uncertainty--All defendants are jointly liable.
a. Burden of proof may shift to Ds
3. Acting in Concert
4. Market share liability (21)
B. Contribution (21-22)
1. Losses are apportionable among defendants
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2. Partial equitable indemnity
3. Possible variations: Contribution plus settlement bar; Claim reduction
C. Vicarious Liability (23)
1. Master is strictly liable for the torts of his servant within the scope of employement
2. Question of how far scope extends
3. Distinguishing between servants and independent contractors: How much control
does employer have? (24)
4. Exceptions to the Independent contractor rule (22-23)
VI. CAUSATION (25)
A. Cause in Fact (25-26)
1. D’s negligent act must have been the but-for cause of the harm.
2. If D had taken precaution, is it more probable than not that the accident would not
have occurred (ie, is the probability of an accident reduced by at least 50%)
a. Loss of Chance (does not require more probable than not recovery)
3. Burden of proof may be shifted to D (if D creates situation where proof is
unavailable)
4. Proof of causation may be shown by coincidence in time.
B. Proximate Cause and Scope of Duty (26)
1. What is the “ordinary and natural result” of D’s negligence--NY fire rule
2. No liability for coincidental harms (27)
3. D is liable even if there are intervening causes, but the intervention must be
foreseeable.
a. Exception: No liability if intervening acts are extraordinary
b. Rescue cases are viewed as foreseeable hazards.
4. D may be liable for direct consequences of his conduct, even if the injury was
unforeseeable.
5. D has a duty toward foreseeable plaintiffs, even if the harm is unforeseeable. But,
there is no liability for unforeseeable harms to unforeseeable plaintiffs.
6. D may have caused harms which are within the risk he created.
7. D may be liable for harms which are, in general, foreseeable.
VII. SPECIAL DUTIES OF CARE (30)
A. Rescue Situations
1. D liable for misfeasance, but not for nonfeasance.
2. D has a duty to render reasonable aid under the circumstances.
3. Duty towards adults is less than that towards children
B. Duties of Owners and Occupiers (31-32)
1. Categories of people who can enter another’s property:
a. Trespassors: Duty is smallest. Possessor hs no duty to protect trespassors, but
he cannot engage in deliberate harm toward them.
b. Licensees: Possessors have a duty not to create traps. No duty to find hidden
hazards.
c. Invitees: Duty is greatest; possessors must take precautions.
2. Exceptions: Possessors may have a duty toward trespassors in some circumstances.
3. Abolition of 3-part system: Possessor has a reasonable duty of care to all persons on
his premises.
C. Gratuitous Promises (32-34)
1. Again, D liable for misfeasance but not for nonfeasance.
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2. A duty may be established because of reliance.
3. Once a D makes a good faith agreement, he is bound to use reasonable care in
fulfilling that agreement.
4. D may not have a duty toward third party beneficiaries.
D. Special Relationships (34)
1. D may be liable if he encourages negligent behavior
2. A landlord may have a duty toward tenants.
3. A psyhiatrist has a duty to take reasonable measures when he knows his patient
might cause harm
VIII. STRICT LIABILITY (35)
A. General Points: Contributory negligence is not a defense to strict liability; with strict
liability, the doctrines of proximate cause are tighter.
B. SL for known dangerous animals, or animals that are inherently dangerous.
C. SL for abnormally dangerous activities (35)
a. Restatement factors
b. Principle of proximate cause is harm within the risk
D. Nuisances (37-39)
1. Private Nuisance
a. P’s prima facie case is made out so long as there is evidence of serious harm
b. Remedies:
(1) Temporary Damages
(2) Permanent Damages
(3) Injunction
c. Nuisance per se vs. nuisance in fact
d. Usually, no claims allowed for easements of light and air or for aesthetic
nuisances.
e. Ds are not liable to extrasensitive plaintiffs.
f. Coming to the nuisance is a relevant factor, but it will not bar plaintiff’s
recovery.
2. Public Nuisance (39)
a. D causes damage to the public or to common property
b. In general, no recovey if all that is suffered are economic losses
c. Least cost avoider rule is an exception to the economic loss rule.
IX. PRODUCTS LIABILITY (39)
A. Historical Evolution:
1. Different ways of controlling product safety
2. Early rule: privity limitation
3. Strict Liability--rationales for (41)
4. Warranty Actions (42)
B. Restatement S. 402A (42-44)
1. Principles: Seller must be engaged in the business of selling this product. Strict
liability applies.
2. Assumption of risk is a good defense; contributory negligence is not.
3. Physical harm rule: Only personal and real property losses are recovered in tort.
4. Proper defendants: service providers and sellers of used goods are not liable under
402A.
C. Manufacturing and Design Defects (44)
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1. Construction Defects:
a. Liability is strict.
b. P must show that defect caused his harm.
2. Design Defects: Can only understand the defect with an analysis of the danger.
a. Negligence Standard: Notions of foreseeability
b. Consumer Expectation test: Is the design dangerous to an extent that
consumers would not expect? (S. 402A)
c. Risk-utility standard: Does the risk of the design outweigh its utility?
d. Most courts apply the “state of the art” at the time the product was sold--not at
the time of trial.
D. Inadequate Warnings (45)
1. Duty to warn of dangers that are not of common knowledge, or are not apparent to
the ordinary consumer.
2. To be adequate, warning should include language that the ordinary consumer would
find convincing.
3. P must show that the allegedly inadequate warning was the cause of his harm.
4. Prescription drugs: Mfrs. typically held to the state of the art at time of sale.
X. DAMAGES (46-48)
A. Compensatory Damages
1. Non-pecuniary awards: pain & suffering; loss of enjoyment to life
2. Economic losses
3. Wrongful death and loss of consortium (47)
B. Punitive Damages
1. Available for intentional, or willful and wanton misconduct
2. Rationale for punitive damages.
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