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TORT LAW RULES
INTENTIONAL TORTS [ABC-FITT]
Assault:
An intentional act that causes a reasonable apprehension of an imminent battery. No contact is
required, but the plaintiff must be aware of the defendant’s act that caused the apprehension. The
defendant must have the ability and opportunity to carry out the threat immediately.
Battery:
An unprivileged intentional act resulting in harmful or reasonably offensive contact with the
plaintiff or some extension of the body.
Conversion:
An intentional substantial interference with plaintiff’s possession of chattel, resulting in
deprivation of said possession. [Differs from trespass to chattels in that the interference
substantially affects the value of the chattel and the plaintiff is entitled to the full value of the
chattel at the time of the conversion].
False Imprisonment:
An intentional act or threat of an act that unlawfully confines the plaintiff to an identified area.
The restraint must be against the plaintiff’s will. Plaintiff must be aware of the confinement. The
confinement does not have to be for any particular length of time and there is no apparent means
of reasonable escape.
Intentional Infliction of Emotional Distress:
An intentional, extreme and outrageous act which causes the plaintiff severe emotional distress
of a type a reasonable person would suffer under the same circumstance, unless the defendant
was aware of plaintiff’s unusual sensitivity. [Emotional distress can give rise to parasitic
damages in separate tort actions, such as assault or battery].
Trespass to Land:
An intentional act by the defendant which causes unauthorized entry onto the plaintiff’s land or
real property by self, a third party or physical object. [Defendant is liable even if no damages are
incurred or s/he believed the entrance was lawful].
Trespass to Chattels:
An intentional act for the purpose of causing unauthorized interference with plaintiff’s chattel
which results in physical damage, unauthorized use, or movement.
Defenses to Intentional Torts [DARN COPS]:
Discipline:
Defendant is privileged by virtue of position to use necessary, justified and reasonable force for
discipline and control. [Defense to false imprisonment and battery].
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Authority of Law:
Arrest:
Law enforcement officers acting within their territorial and subject matter jurisdiction may use
reasonable force to arrest a person if the officer has probable cause to believe the person has
committed a crime. Citizens may make an arrest (or, in some jurisdictions, may detain the
defendant) to prevent a felony or breach of the peace committed in the citizen’s presence. Some
jurisdictions require a misdemeanor to be committed in the officer’s presence before the officer
can make a warrantless arrest. [Defense to false imprisonment and battery].
Shopkeeper’s Privilege:
A storeowner who reasonably suspects a person of stealing merchandise may use reasonable
force to detain the person for a reasonable time to conduct an investigation and summon police.
[Defense to false imprisonment].
Recapture of Property:
Property owners have a limited privilege to trespass or use reasonable force to recapture
property, i.e. retake possession of land or chattel that has been wrongfully taken. [Defense to
trespass to land, trespass to chattels, false imprisonment, assault and battery].
Necessity:
[Defense to trespass to land, trespass to chattels, and conversion in an emergency; defendant is
privileged to use reasonable minor force]
Private Necessity:
A privilege to act to prevent a threatened injury resulting from a cause not brought about by the
person claiming the privilege. Where the defendant acts to protect a private interest, the privilege
is more limited than with public necessity. The defendant may trespass onto private property to
prevent injury to self and/or property, or to prevent injury to a third party or property; the
defendant is responsible for damages to plaintiff’s land or property.
Public Necessity:
A privilege to act to prevent a threatened injury resulting from a cause not brought about by the
person claiming the privilege. Where the danger affects the entire community, or a large part of
it, the defendant is justified in acting to prevent harm to that group. There must be an immediate
peril to the community, and there must be a need for the defendant to destroy private property in
order to prevent the damage to the community as a whole. If the defense is successful, there is no
liability for damages to the plaintiff’s land or property.
Consent:
The plaintiff’s express [words] or implied [conduct] consent is a defense to all intentional torts.
Consent must be effective; some plaintiffs are legally incapable of consenting—minors or
mentally incompetent—or by statute [i.e. statutory rape offenses] or an act that is illegal. Consent
may not be obtained by fraud or duress.
Defense of Others:
A person may use reasonable force to defend a third party from apparent immediate wrongful
bodily harm. Under the majority view, the “good Samaritan” is not liable if s/he reasonably and
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honestly believed s/he was helping the victim. Under the minority view, the defender “steps into
the shoes” of the third party; thus the defender may use only the amount of force which the third
party was privileged to use. [Defense to assault and battery].
Defense of Property:
Reasonable force may be used to protect property in the defendant’s possession, i.e. prevent
apparent trespassers from entering, eject apparent trespassers, prevent taking or damage of
personal property. Absent a threat to defendant’s life, deadly force may not be used to defend
one’s property. A homeowner is not required to retreat. [Defense to assault and battery].
Self-Defense:
A person may use reasonable force to defend against immediate bodily harm. Deadly force may
be used only if the defendant is threatened with immediate danger to life or great bodily injury.
Under the majority view, no retreat is necessary; a minority of jurisdictions require retreat if it is
reasonably safe for the defendant to do so. A defendant is not privileged to claim self-defense if
s/he was the aggressor unless there was an attempt to withdraw. [Defense to all intentional torts].
NEGLIGENCE (general definition):
A failure to exercise the degree of care that a reasonable person would use in the same situation,
thereby exposing others to unreasonable risks of harm, wherein the defendant owed a duty,
breached the duty, was the actual and proximate cause of the injury to the plaintiff, and the
plaintiff was injured [damages].
General Duty of Care:
Legal obligation to conform to a standard of care to protect others from harm.
Special Duty of Care for:
Common Carriers:
Held to a high standard of care to use the utmost care and diligence to protect customers from
harm.
Land Occupiers to Trespassers:
Land occupiers are not liable for injury to trespassers caused by the land occupier’s failure to
reasonably put the land in a safe condition. Some jurisdictions have abandoned rules related to
the intruder’s status and choose to focus on the foreseeability of harm. Under the majority rule,
once the presence of the trespasser is discovered, there is a duty to use reasonable care to avoid
injuring him or her [tolerated or discovered trespassers]. The minority view is that the land
occupier is only responsible for willful and wanton conduct resulting in injury to the trespasser.
Land Occupiers to Trespassing Children [Attractive Nuisance Doctrine]:
Land occupiers are liable to trespassing children if the occupier should anticipate children being
at the place of danger, the occupier knows or should know of the condition, the child doesn’t or
is unable to appreciate the danger involved, and the risk to the child is greater than the utility of
the condition to the occupier.
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Land Occupiers to Licensees:
A licensee comes onto the land with the possessor’s consent for benefit to the licensee. The
possessor owes the licensee no duty to inspect and owes no affirmative duty to make the
premises safe. The possessor must warn the licensee of known concealed dangers on the
property.
Land Occupiers to Invitees:
An invitee enters with consent for benefit of the possessor. The possessor is under a duty to warn
the invitee of known dangers, and the possessor also must take reasonable care to discover and
fix dangerous conditions on the property. Thus, there is an affirmative duty to make the premises
safe. The obligation only extends to the area of invitation.
Landlords:
Landlords must warn tenants of dangerous conditions and exercise reasonable care to make
common areas safe; landlords are liable for negligent repairs to such areas. The person who
occupies the premises is responsible to invitees, licensees, and trespassers, even though s/he only
rents the home or apartment.
Health Care Providers:
Must act with the same training and experience of professionals in that same field.
Children:
Held to the standard of care of a child of the same age and experience, unless the child is
engaged in an adult activity in which case the adult standard is used (e.g. operating a motorized
vehicle).
Physically Disabled Defendants:
Held to the standard of care of a reasonable person with the same disability in the same
circumstance.
Standard of Care in Emergencies:
Held to the standard of care of a reasonable person confronted with the same emergency
circumstances.
Nonfeasance:
Failure to act, a passive failure to take steps to protect others from injury.
General Rule:
With some exceptions, nonfeasance does not serve as a basis for liability.
Exceptions and Qualifications:
Where there is a special relationship between the parties (e.g. common carriers have to aid
passengers in peril, restaurant owners must protect patron in cases of fire, jailer has duty to aid
prisoner who is hurt, parent must protect child, etc.). While a duty generally is not owed to
rescue, a defendant who caused the peril has a duty to try to aid the plaintiff. If one chooses to
come to the aid of another, the Good Samaritan cannot leave the victim in a worse position than
s/he was found. There may be a statutory obligation to aid (e.g. police officers enforcing orders
of protection in domestic violence situations).
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Breach of Duty:
Failure to act to reasonably to protect the plaintiff from foreseeable harm.
Violation of Statute:
A statute may be interpreted as establishing the standard of care required for all reasonable
persons. The plaintiff must be in the class protected by the statute, the harm must result from a
violation of the statute, and the violation must not be excused.
Learned Hand Formula:
B is less than L x P where B=defendant’s burden to avoid the risk of harm, L= gravity of
potential harm, and P= probability of harm that could occur from defendant’s conduct.
Res Ipsa Loquitur:
A doctrine of law which permits the finder of fact to find breach of duty absent direct proof of
such negligence. The plaintiff must show that the instrumentality causing the harm was under the
control of the defendant, the harm would not ordinarily occur without negligence, and the harm
was not caused by the plaintiff. Where RIL applies, the burden of overcoming the presumption
of breach is shifted to the defendant.
Causation:
The plaintiff must show that the defendant was the actual and proximate cause of the plaintiff’s
injuries.
Actual Cause:
Has the defendant’s act or omission caused injury to plaintiff?
But For Test:
But for the defendant’s act or omission, the plaintiff would not have been injured. The harm
actually resulted from the act or omission.
Substantial Factor Test:
Where two or more causes have led to injury, the defendant’s act will be considered the actual
cause if the act was a material and substantial factor in bringing about the event.
Joint and Several Liability:
Joint torfeasors are defendants that act together to cause the plaintiff’s injury. They are jointly
and severally liable for the plaintiff’s total damages. Each of the tortfeasors is liable for the entire
damage award.
Concurrent Tortfeasors:
Concurrent tortfeasors are defendants whose independent acts cause the plaintiff’s injuries. They
are jointly and severally liable for the plaintiff’s total damages. Each of the tortfeasors is liable
for the entire damage award.
Proximate Cause:
Defendant is liable only for harms that were reasonably foreseeable.
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Unforeseeable Plaintiff Limitation (Palsgraf situation):
Liability is limited to harms sustained by a plaintiff within the “zone of danger” as a result of the
defendant’s acts that should have been reasonably foreseen by the defendant.
Intervening Act:
A negligent defendant is liable for any harm resulting from an unbroken chain of causation
following the tortious act, absent an intervening act. An independent intervening act occurs after
the defendant’s negligence and negates liability. Foreseeable intervening acts do not break the
causation chain; unforeseeable acts break the chain because the initial negligence is no longer the
proximate cause of the injury.
Thin Skull Plaintiff Doctrine:
Defendant takes the victim as s/he finds him. Courts do not require that the type of injury
suffered by the plaintiff be foreseeable.
Defenses:
Excuse or mitigate what otherwise would be actionable negligence.
Contributory Negligence:
The negligence of the plaintiff, no matter how slight, bars recovery.
Last Clear Chance:
Allows a plaintiff to recover despite contributory negligence if the plaintiff can show that the
defendant had the last clear chance to avoid injuring the plaintiff.
Comparative Negligence:
Pure Comparative Negligence:
Negligence on the part of the plaintiff is not a bar to recovery, however, the plaintiff’s recovery
is reduced by his or her negligence. In “pure” comparative jurisdictions the plaintiff is not
barred from recovery even if the plaintiff is largely at fault.
Partial Comparative Negligence:
If the plaintiff’s fault is greater than 50%, the plaintiff is barred from recovery.
Assumption of the Risk:
A plaintiff who knowingly places him or herself in a position of risk by express or implied
agreement, or knows and appreciates the risks and voluntarily subjects him or herself to the risks,
is barred from recovery for negligence.
Vicarious Liability:
A defendant may be jointly liable for the actions of another, i.e. under the doctrine of respondeat
superior. An employer, for example, is responsible for the torts of an employee committed within
the scope of employment.
STRICT LIABILITY:
Liability imposed without the requirement of showing that the defendant intended to interfere
with the plaintiff or breach a duty owed. The plaintiff need only establish that injury was caused
proximately by one of the activities listed below.
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Possession of Animals:
Strict liability is imposed upon owners of wild animals or vicious domestic animals that the
owner knows to be vicious.
Abnormally Dangerous Activities:
Activities involving a high degree of risk of serious injuries to persons or property (e.g. use of
dynamite, rocket testing, maintaining nuclear reactors, and crop dusting).
Products Liability:
Those in the chain of production of defective, unreasonably dangerous products, are liable to the
consumer for resulting injuries based on negligence, breach of express warranty, breach of
implied warranty, or strict liability in tort.
Proper Plaintiff:
There need not be privity with the manufacturer as the seller or manufacturer has the duty to
inspect and warn potential plaintiffs, i.e. all people that might reasonably be expected to use or
otherwise be injured by the product.
Proper Defendant:
Those in the chain of production (e.g. the manufacturer, designer, wholesaler, and retailer).
Defect:
Types of Defects:
Design, failure to warn, manufacturing, inadequate testing, inadequate inspection, breach of
warranty, defective products.
Manner of Proof:
Plaintiff must show that the product was the cause of the injury, that it was defective, and that the
defect was present when it left the defendant’s control. Breach may be established on the basis of
RIL when the plaintiff can not prove who caused the defect.
Breach of Warranty:
UCC 2-318 gives the benefit of express and implied warranties to the buyer and family and
household members of the buyer (some jurisdictions extend the protection to all persons).
Express:
Seller makes a material representation as to a product’s safety, durability, or performance.
Implied:
UCC 2-314 provides that a seller impliedly warrants that the product sold is fit for the ordinary
purpose for which it is made.
DEFAMATION:
Includes the torts of slander and libel.
Defamatory Statement:
A statement which causes the plaintiff to be ridiculed or scorned.
The statement must be of and about the plaintiff.
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Publication:
The statement must be heard by someone other than the plaintiff.
Libel:
Defamation resulting from the written or printed word. Considered more serious than slander
because libel is more permanent.
Slander:
Defamation in spoken form, not permanently preserved.
New York Times v. Sullivan:
A public official cannot recover for defamation unless s/he can show the statement was made
with actual malice, that is, with knowledge that it was false, or with reckless disregard for
whether it was false.
Gertz v. Welch:
Private persons engaged in public controversies need not prove actual malice before recovering
for defamation.
INVASION OF PRIVACY:
Intrusion into Seclusion:
Intentional intrusion upon the solitude or seclusion of another or his or her private affairs or
concerns. This is the intrusion into the victim’s “zone of privacy”.
Appropriation:
Appropriating for one’s own use or benefiting from the name or likeness of another (e.g. the
unauthorized endorsement of a product).
Public Disclosure:
Publication of private facts that are highly offensive to a reasonable person and are not of
legitimate public interest.
False Light:
Publication of false facts that a reasonable person would object to. The publication causes the
plaintiff embarrassment, inconvenience, or loss of reputation.
CONTRACT INTERFERENCE:
Interference with Existing Contract:
Defendant’s intentional and improper interference with knowledge that a contract exists, causing
financial losses to the plaintiff.
Interference with Prospective Advantage:
There must be a valid contract between the plaintiff and a third party; the defendant must know
of the contract or economic expectancy; the defendant intended to interfere with the contract or
expectancy; the defendant actually interfered; and plaintiff suffered financial losses.
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MISREPRESENTATION:
Deceit:
There must be a material misrepresentation; the defendant knew the statement was false; the
defendant intended to induce reliance on the statement; the plaintiff justifiably relied on the
misrepresentation; and plaintiff was injured as a result.
Nondisclosure:
Defendant’s breach of duty to reveal material facts causing plaintiff’s reasonable reliance on
misleading appearances and injury.
Negligent Misrepresentation:
Defendant’s accidental breach of duty to provide accurate information causing plaintiff’s
reasonable reliance and injury.
NUISANCE:
Public Nuisance:
Unreasonable conduct that causes substantial interference with the plaintiff’s right to use and
enjoy public rights or resources.
Private Nuisance:
Unreasonable conduct that causes substantial interference with the plaintiff’s right to use and
enjoy his or her land.
DAMAGES:
Compensatory:
Damages awarded as compensation, indemnity, or restitution for harm suffered by the plaintiff.
Can include both pecuniary and non-pecuniary losses.
Property Damage:
Lost or destroyed property at fair market value; damages valued at repair cost to a maximum of
fair market value.
Economic Damages:
Lost wages, lost profits caused by damage to property if the plaintiff had a proprietary interest in
the damaged property, and economic damages caused by negligent performance of a duty
established by contract recoverable by those the contract was intended to benefit.
Personal Injury:
Past and future medical costs, pain and suffering, and lost income.
Mental Distress:
Traditionally not recoverable without physical injuries or physical manifestation of mental
distress. Modernly, this has been relaxed and plaintiff can recover where the mental distress is
sufficiently manifested (e.g. loss of sleep, clinical anxiety or depression).
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Physical Injuries Caused by Fright:
Under the majority view a plaintiff can recover for physical injuries caused by fright resulting
from negligence.
Negligent Infliction of Emotional Distress:
Defendant is liable for mental distress suffered by bystanders, witnesses, rescuers, and relatives
of accident victims caused by the negligent injury to a third party. The plaintiff was close to the
injury by time, place and/or relationship and suffered severe emotional distress. Some
jurisdictions require a physical touching or impact; others require a physical manifestation of the
emotional distress,
Loss of Consortium:
Husbands, and modernly wives, can recover for loss of consortium because of injuries to spouse.
Claims by Parents for Injury to Children:
Under common law parents could claim loss of labor or services by the child. Modernly, courts
reject this cause of action; the child, however, can bring an action through the parent or guardian
on his or her behalf.
Claims by Children Against Parents:
A child may bring a claim against a parent for injuries resulting from a specific act of negligence
in which s/he failed to properly supervise the child.
Wrongful Death:
Plaintiff brings a claim for losses resulting from the defendant’s negligent acts that caused the
death of another person (e.g. loss of income, consortium, companionship).
Wrongful Life:
Claims brought by children with birth defects against parents knowing about the defect at the
time of pregnancy and not aborting; rejected by courts.
Claims brought by children with birth defects against medical professionals because they were
born with defects and medical conditions due to the negligence of the defendants in failing to
diagnose and warn the parents; generally not accepted by courts.
Wrongful Birth:
Claims brought by parents against medical professionals that, due to their negligence, an
unwanted child was born. These are claims that the medical professional failed to act responsibly
to prevent the birth (e.g. vasectomy improperly performed) or failed to act reasonably to discover
and inform parents about fetal birth defects that would have resulted in their deciding to abort the
fetus. Increasingly, these claims have been supported by courts.
Punitive:
Awarded when a tort is committed with malice. Designed to punish and deter egregious conduct.
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