TORTS/REMEDIES
Schechter
May 1999
Made by Kyu Sang Chung
Edited by Changseok Oh
*
1.
MBE: 40Qs including equitable remedies
TWO PROBLEM AREAS
1.
Area One - TORT LIABILITY (80%-85%)
1.
1st question: Can plaintiff establish prima facie case requirements?
1.
If no, stop!
2.
If yes, ask 2nd question
2.
2nd question: Can defendant establish any affirmative defenses?
2.
Area Two - GENERAL CONSIDERATION (15%-20%)
1.
Applicable to all tort cases irrespective of the tort involved
2.
Examples
1.
Vicarious liability
2.
Multiple defendant issues
3.
Tort immunities
I. INTENTIONAL TORTS ((8 Questions)10/40)
A. Three OVERVIEW POINTS for all intentional torts
1. P's hyper-sensitivity is never taken into account in determining liability.
 P has ordinary reasonable sensitivity. Judged by a reasonable person standard.
2. No incapacity in torts. -- Incapacity is not a good defense.
 i.e. even young children, the drunk, insane, or mentally retarded are liable for their intentional
tort.
3. Intent: almost always presumed in MS Qs, so rarely tested.
 Intent to do actual physical act
 Awareness with substantial certainty that the result is going to occur.
. The only intent necessary to have C/A is to do some physical act.
[QE] Transferred intent may be invoked only where both intended and resulting
tort are: assault; battery; false imprisonment; trespass to land; or
trespass to chattels. (Intent will be transferred both to person and to
another tort.)
3.
INTENT
1.
An actor Aintends@ the consequences (e.g., harmful or offensive contact
with plaintiff=s person)
1.
When his goal is to bring them about, or
2.
When he knows with substantial certainty that they will result
from his actions
2.
Defendant=s inability to understand that his act was wrongful is irrelevant
(e.g., mental illness does not preclude defendant from possessing the
4.
5.
6.
7.
8.
requisite intent)
ACT BY DEFENDANT
CAUSATION
The ASupersensitive@ Plaintiff Fact Pattern
1.
The Rule: Plaintiff=s super-sensitivities are irrelevant
2.
Exception
1.
Defendant, in fact, knew of them
2.
In short, treat plaintiff as an Aaverage person@ (subject to the
exception)
The AIncapacitated@ Defendant Fact Pattern: This includes, e.g., young children,
mental incompetents, very drunk persons
1.
The Rule: Everybody is liable for intentional torts!!!
2.
Favorite Exam Red-Herring: AThis defendant cannot be held liable
because he/she lacked capacity to have intent@  Wrong (Everybody is
liable for intentional torts!!!)
The Transferred Intent Fact Pattern
1.
The Rule: Intent can be transferred from
1.
person to person, and
2.
tort to tort (applicable to)
(1)
Battery
(2)
Assault
(3)
False imprisonment
(4)
Trespass to Land
(5)
Trespass to Chattels
2.
Hypo: Doofus, intending to scare Bowater, throws a ball
close to his head. It strikes Lulu who is standing close by
1.
2.
#
Bowater  Lulu (person to person)
Assault  Battery (tort to tort)
transferred intent
intent to commit a different tort, and/or to a different person
only limited to
Assault,
Battery,
False imprisonment,
trespass to land
trespass to chattels
B. INTENTIONAL TORT TO PERSON (Be sure to refer “intent” and “causation”
in any essay Qs related to Torts)
1. Battery: Two elements -- i) Harmful or Offensive Contact ii) With Plaintiff's Person
a. Harmful or Offensive Contact; reasonable person standard (ordinary sensitivity)
1) "harmful" - self evident (rarely tested)
2) "offensive" = Unpermitted.
 Any contact likely not to be permitted by a person of ordinary & reasonable sensibility is
“offensive” (this standard will apply only to emergency situation)
(eg.) Tapping on your shoulder to ask what time it is?  OK
Disgusting jerk stroking your hair?  probably not OK
3.
What is an AOFFENSIVE@ contact?
1.
Unpermitted contact even if not harmful
2.
But remember: The Asupersensitive@ plaintiff rule  AAverage
person@ (subject to the exception)
(1)
socially acceptable way of touching (i.e.> tapping one in
the shoulder) is O.K.
(2)
touching one=s hair  probably offensive
3) Indirect contact may be contact
b. With the P's Person
1) Includes anything connected to P.
(eg.) Snatching plate P holds, kick a dog where P holds the dog leash, hit a horse on which
P sits, etc.
2) Harm doesn’t have to be instantaneous
(eg.) Setting a trap for P to fall into and you get hurt later. Putting poison and eat later.
4.
5.
Do not have to actually touch plaintiff=s body
Includes anything connected to plaintiff=s person
6.
Hypos
7.
1.
Doofus grabbed a plate out of Bowater=s hand. Battery? Yes
2.
Doofus shook the car Bowater was sitting in. Battery? Yes
In short, on the exam construe Aplaintiff=s person@ very liberally
2. Assault: Two elements -- i) reasonable apprehension by P.; and ii) of immediate battery
[QE] No damage requirement
a. Apprehension of a battery (harmful and offensive contact)
1) Apprehension must be reasonable: person of ordinary sensitivity is needed here.
8.
Must be reasonable (no Hypersensitivity allowed)
1.
Subjective apprehension  INEFFECTIVE
2.
3.
Hypo: I move my hand to my back-pocket to get my handkerchief. You believe
I=m going for a gun to shoot you. Reasonable?
But remember: The Asupersensitive@ plaintiff rule  AAverage
person@ (subject to the exception)
2) "Apprehension" is not same as “fear”
 Awareness, or knowledge of imminent battery
 A weakling can cause apprehension to Arnold the Terminator and thus may assault him, even
though Arnold is not afraid of the weakling. (David-Goliath paradigm)
3) D's "apparent ability" (reasonable apprehension in MBE) to commit a battery is enough from the
perspective of P. (e.g., unloaded gun)
 Would a person of ordinary sensibility be apprehended? is a key question.
9.
Do not confuse apprehension with fear and intimidation
1.
Typical Apprehension Situations
(1)
David v. Goliath
(1)
small person (D) menacing a big person
1)
capacity to protect oneself or lack of fear is
NOT Apprehension
2)
Apprehension merely requires recognition
that the other will begin an aggressive
behavior
(2)
Hypo: Little Luella throws wild punches at Mike Tyson. None
land, but a number come very close. Assault? Yes
(2)
(3)
Back Turned Plaintiff
(1)
NOT apprehension because there is NO knowledge
on P regarding D=s intent.
Unloaded Gun - Reasonable Apprehension
(1)
even if D CANNOT attack with gun without any
bullets ....
1)
IF P reasonably believe Apprehension,
THEN assault (Analyze from perspective of
P)
b. Immediacy
1) Words alone are never enough, pure, verbal threats are never enough to establish assault (must be
coupled with conduct)
 Any menacing behavior is enough. (Shaking an umbrella might be enough.)
2) Words can negate immediacy in some cases, even if there is overt action.
a) Conditional words negating immediacy: “If you weren’t my best friend, I’d punch you,” while
brandishing his fit.  No immediacy.
b) Words indicating any battery will take place in the future: “We’ll break your neck if you don’t
pay up in 8 hours,” while showing the brass knuckles.  No immediacy.
9.
2)
Of an IMMEDIATE Battery
1.
Hypo: Someone is throwing punches at you from the other side of the
room. Assault? No
2.
The AWords@ Rules
1.
Words alone (even if violent) are not enough
(1)
Hypo: Doofus threatens to punch you in the nose if you don=t
promise him a job. Assault? No
2.
Need objective physical conduct to manifest intent of D
(1)
Hypo: Same as above except he=s shaking his fist under your chin
while speaking. Assault? Yes
3.
But be careful
(1)
Words can also cancel/negate immediate conduct and any
reasonable apprehension
(1)
subjective or conditional words
1)
Hypo: Doofus shakes fist under Bowater=s nose and
says: AIf you weren=t my best friend, I=d clobber
you.@ Assault? No
(2)
10.
words of future conduct
1)
Hypo: AI=m going to punch you in the face.@
Battery v. Assault: Battery wins over assault
3. False Imprisonment: Two elements – i) Act of restraint and ii) confined in a bounded area
[QE] No damage requirement
a. Act of restraint
1) Threat is good enough to satisfy “act of restraint” requirement, if a threat would be restraining to a
person of ordinary sensitivity.
(eg.) “Get in the closet and wait until I come for you,” while brandishing his gun.
2) Omission of act (passive behavior) when D has a duty to release.
(eg.) Prison officers do nothing when P's term has expired. Bus driver keeps going.
#
(3)
invalid use of legal authority
3) The P must be aware of the confinement.
(eg.) While you’re drunken and asleep, you can’t be confined.
 However, even if not aware, if actually suffer concrete injury, actionable.
(eg.) Baby who was not aware but get hungry.
4) Period of time is irrelevant (no matter how brief the time is)
(eg.) Two minutes of false imprisonment is good enough.
11.
Sufficient Act of Restraint
1.
What is a sufficient act of restraint? Common sense fact analysis. Simply
ask yourself: Does it Alook sufficient?@ If it does, follow your instinct
2.
Threats are enough.
1.
You do not need the actual application of force
3.
Inaction (doing nothing at all) is enough IF there has been an
understanding regarding D=s preexisting obligation to assist P in moving
around. Understanding can be express or implied
1.
Hypo: Defendant takes plaintiff across the ocean on his boat. When it arrives in
port he refuses her a boat to put her ashore. False imprisonment? Yes
2.
Hypo: Police NOT freeing a D whose jail time has expired.
4.
Time period of confinement is IRRELEVANT
1.
Very short time period, e.g., 20 seconds, is enough
2.
Length of time is relevant ONLY in valuing damages.
Plaintiff must  know of the confinement at that time it occurs or  suffer harm (i.e.>
denial of medication
b. Bounded area
1) Area is bounded only if your movement is confined in all direction (360 degree radius).
3.
4.
Plaintiff=s freedom of movement in ALL DIRECTIONS (360)
is limited
Examples
(1)
Hypo: Doofus, walking down the street, comes to a wrongfully
barricaded corner and has to walk around the block to get to where
he=s going. False imprisonment? No. Not enough to be a bounded area
(2)
Hypo: Because of wrongful barricading, Doofus has to go
20 miles around a lake. False imprisonment? Yes. Great
inconvenience  Bounded area
2) Excluding you from a particular area is not enough to satisfy the bounded area requirement.
(eg.) Refuse to enter is not false imprisonment
5.
Keeping Someone Out of a Place
1.
Exclusion  False Imprisonment
(1)
Hypo: woman excluded from abortion clinic  NOT False
Imprisonment
(2)
Hypo: P is excluded from getting into a night club by the
bouncer ... P argue excluded from the night club and
imprisoned by the rest of the world  NOT false
imprisonment.
3) There should be no reasonable means of escape of which the P is aware.
(eg. 1) Locked in basement, sewage outlet with full of rats and sewage
 Not reasonable means of escape.
(eg. 2) Locked in the library. There is a secret passage to outside, but you don’t know it.
 Bounded area.
6.
Area is not bounded if there is
1.
A reasonable means of escape, and
2.
Plaintiff knows of it
3.
Example
(1)
man goes down basement ... someone locks the door ...
presence of opening pipe on the wall leading to the street ...
but the pipe infested with rats  NOT reasonable means of
escape
(2)
person goes to rich man=s mansion ... butler locks him in
the library ... presence of secret way behind one of the
bookshelves ...  NOT reasonable means of escape because
guest could not have figured it out.
c. <NY Favorite>: special affirmative privilege (Same rule in MBE!)
1) NY gives affirmative privilege to shopkeepers to detain suspected shoplifters (This rule extends to
librarians), provided shopkeepers behave reasonably:
librarian - similar privilege
2) 3 part test of reasonableness:
i) Has a reasonable ground of suspicion of shoplifting.
ii) Use a reasonable method of detention.
iii) Detain for a reasonable time necessary for such investigation.
[QE] It is also a defense to other intentional torts.
4. Intentional Infliction of Mental Distress - fall back tort. IMPORTANT!!!)
* Introductory note: Intentional infliction of mental distress is a fall back tort. It is very easy for
it to be a wrong answer in MBE. If any other cause of action fits your fact pattern, you should
choose that instead. You can, however, use it as a fall back argument in NY essay portion to
gain brownie points.
a. Two elements
i)
Extreme or outrageous conduct.
ii) Damage - P must prove severe emotional distress
**
Intentional infliction of mental distress is the only intentional tort to the person that
requires damages.
#
iii)
intent or recklessness as to the effect of conduct
b. What is outrageous?: Conduct that transcends all bounds of decency in civilized society.
NY definition:
conduct exceeding all bounds tolerated by decent society
1) Normally, mere verbal insult or name calling is not outrageous.
4.
5.
(i.e., you are expected to live with a lot in our friction-filled world)
Examples
(1)
Hypo: Doofus insults you. Outrageous? No
(2)
Hypo: Gangster tried to persuade store owner to buy
protection services by harassing customers. Outrageous?
Yes
2) Context is important: there are 4 types of situations that make normally not outrageous conduct
more likely become so.
a) Conduct took place in public
if the conduct took place in public, more likely outrageous
6.
Conduct takes place in public resulting in
embarrassment/humiliation to P
b) Continuous/repetitive conduct
(eg.) In debt collection context, 2:00 AM every night for a month.
(1)
i.e.> credit card company calling P at 2AM everyday for a month
telling P ... Apay your goddamn bills@
c) Conduct of common carrier (airline, bus, train), or inn-keeper
7.
The type of defendant
(1)
Conduct remains the same, but is done by this type of
defendant
(1)
Common carriers
(2)
Innkeepers
(2)
How do you deal with them? Insult a passenger 
Outrageous
(3)
But be careful: The common carrier/innkeeper rules only
apply if the plaintiff is a passenger or a guest
d) Vulnerable P
1) Unusually susceptible class of people (eg. kids, elderly, pregnant woman)
2) Emotionally fragile individual is not considered. (Always use ordinary sensitivity standard.)
Individual hyper sensitivity is not considered.
 However, if D knew & exploited hypersensitivity of P deliberately, then liable.
racial ethnic minority? more likely outrageous
8.
The type of plaintiff
(1)
Conduct remains the same, but is directed at this type of
plaintiff
(1)
Young children
(2)
Elderly persons
(3)
Pregnant women
(4)
Adults with super-sensitivities defendant knows of
1)
exploitation of a known super-sensitivity is
considered Outrageous.
(2)
The more extreme the facts, e.g., the younger the child, the
easier it is to do this
ii)
severely distressed
12.
Damage
1.
Physical injury is not required but clear proof of substantial emotional
distress is required
2.
Only here damage is required
3.
The more outrageous conduct, less damage is required
2)
Causation in Bystander Case
must be severe emotional distress.
#
In cases where a D intentionally causes physical harm to one person and
another suffers severe emotional distress because of it, the P may recover by
showing either the prima facie cae elements of emotional distress or that
3)
i)
ii)
iii)
P. was present when the injury occurred to the other person
P. was a close relative of the injured person
D. knew above two facts
NY:
separate C/A of the next in kin for the intentional mishandling of corpses.
*(not in class, but was in the original outline)
It is good to mention it on an essay, but only after discussing the other possibilities.
C. INTENTIONAL TORTS TO PROPERTY
1. Trespass to land: Two elements -- i) Physical invasion (w/ intent) and ii) Land
a. Act of Physical Invasion
1) Intent: No need of awareness that he is invading another’s land. Mere fact of invasion is enough.
(Intent to go where you are going is sufficient)
 Only exception of no intent: sleep walk, hurled by someone else, etc.
intent to go where you are going, need not realize the ownership.
1.
2.
Intent to get there by volitional act
(1)
no specific intent requirement
(2)
ignorance of the trespasser is IRRELEVANT
NO Intent IF;
(1)
sleep walking into another=s property
(2)
reflexive motion
(3)
accident
(4)
riding an animal gone wild (i.e.> horse gone out of control)
2) Physical invasion
i) Including throwing physical objects (water, stones, baseball, etc.) into the land.
ii) Intangible matters (odor, noises, smoke, blasting waves) are not invasion.
. (see nuisance)
4.
5.
Entering by D OR;
Does not require that defendant personally go onto the land
1.
6.
Hypo
(1)
Defendant throws a rock on plaintiff=s land
(2)
Defendant pushes someone onto plaintiff=s land
Does, however, require that some physical object go onto the land
1.
Hypo: Loud music from next door
(1)
(2)
Not physical object  Not Trespass to Land
But nuisance might work
b. Land
1) Air/subterranean space of the land is also P’s land, provided that the owner can make practical use
of it (i.e., reasonable distance)
(eg.) A ball thrown to the public street through 4 feet above the land = physical invasion of
land. (P wins no matter how unrealistic and stupid a hypo)
7.
Hypo: Teenager throws ball over plaintiff=s property. It Asails@ over never touching the
surface. Liability? Yes
8.
#
iii)
Who may bring action?
anyone in actual or constructive possession of the land
2. Trespass to chattels (personal property) / conversion (interference with private property)
a. Elements: Damages to chattels (personal property: i.e. dog, hat, car...)
1) Damages
Physical harm to chattels;
actual damage required
a) or interference with owner's right of possession in a chattel
 Stealing or taking it away from the owner and depriving him of possession.
#
act by D:
intermeddling
dispossession
b. Border line b/t T/C and Conversion (from the perspective of the owner of the chattel)
1) Moderate or modest damages - trespass to chattels.
(eg.) Joyriding & abandoning a car. Scratching on BMW.
2) Extensive damages - conversion.
eg. professional car thief
 Remedy: Purchase price (FMV) of the object converted.
conversion:
damages: fair market value of the object - as if sold
#
13.
replevin: P gets the chattel back
Major Task: Determine which of the two torts you=re going with
Trespass to Chattel
Conversion
Degree of Harm
small/modest harm to property
Significant harm
Rationale for
special remedy for conversion ... need not settle for repair cost damage BUT
Separation
Ct. will give P a break by treating the conversion like a forced sale of his
property and award Fair Mkt. Value (FMV) instead of repair cost.
Ex.>
woman has dog ... dog left overnight with veterinarian to get treatment for paw ... vet also
neuters dog ...
Q>
Which Harm?
Ans> Minor harm ... Trespass to Chattel ... we view the harm from point of the value to
the owner (although the dog might view being castrated is significant harm ...)
14.
Application
1.
Civil remedy for theft and vandalizing personal property
<NY distinction> : A bona fide purchaser of stolen goods is not considered to be a converter.
#
iii)
intent to act: mistake or innocence is not defense
#
cf. NY: a bona fide purchaser is liable only after a demand and absolute refusal
#
iv)
15.
Damages
1.
Damages includes
1.
Physical damage, and/or
2.
Dispossession
2.
Available damages
1.
Trespass to Chattels
(1)
Actual physical damage
(2)
Damages for dispossession
(3)
Interest
2.
Conversion
(1)
FMV of a chattel at the time and place of conversion
(2)
Interest
3.
When a chattel is located on the land of a wrongdoer, the owner is
absolutely privileged to enter upon the land and reclaim it in a
reasonable manner (i.e., the chattel owner is not liable for any
actual damage caused by the entry)
Hypos
1.
Defendant scratches the leather on plaintiff=s briefcase  T to Chattels
2.
Defendant destroys plaintiff=s briefcase  Conversion
3.
Defendant takes plaintiff=s briefcase for several hours  T to Chattels
4.
Defendant takes plaintiff=s briefcase for ten months  Conversion
16.
actual damage (for trespass to chattels)
D. NY only: Prima facie tort - Intentional infliction of pecuniary harm w/o justification
When an action does not fit into one of the traditional tort categories, the action may be brought for
prima facie tort.
1. Another intentional torts created by NY state courts as a catch all category when one person
intentionally harms another and it does not fit into one of justifications
2. Elements
a. Intentional infliction - intent to do harm, maliciousness
b. Of pecuniary harm
c. Without justification - fair and honest competition is justification
(eg.) Unfair competition in business: P must show D acted maliciously, with no purpose for
helping himself but only with an intent to harm another.
# a.
economic tort in relation to commerce; catch all category: may be pleaded
alternatively, but where a traditional tort has been established or could have
been brought, this action will not lie.
Frequently used in unfair competition. The P must show that the D acted maliciously no other use to his business, etc.
E. DEFENSES (affirmative defenses)
1. Consent - defense to all intentional torts.
a. Any consent fact pattern raises 2 Qs:
i) Is consent available at all?
ii) If available, did D stay w/in the scope of consent?
b. Availability of Consent
1) P must have good valid legal capacity to consent
(cf) To be liable, no need for capacity. So, child, a drunk, or an insane person can commit
a battery, but he can’t give a consent.
2) Two ways of consent
a) Express consent: words in quotation allowing someone to invade. (“Hit me.”)
 Exception: mistake (only if D caused the mistake), fraud, or coercion will void
express consent
if given by fraud, mistake, coercion, undisclosure of material information by D, -- no
defense.
#
(eg) Transmission of venereal disease resulted from a consented sexual relationship.
 Battery. If the facts were not disclosed, P did a mistake to consent. consent invalid
in case of express consent, P's mistake does not undo unless D caused the mistake.
b) Implied consent: 2 ways
1) Inferred from custom & usage.: In a place/during an activity where certain invasions are
considered acceptable.
(eg.) Shoving in crowded trains. Normal contacts inherent in body contact sports, even
when the rules of the game are violated.
eg. athletics - even when the rules of the game are violated
2) From P's conduct, if w/ D’s reasonable interpretation/belief
#
(eg.) The date illustration (girl put up her face to a boy signaling she wanted to be kissed)
However, date rape will exceed the scope of consent.
d.
consent implied by law - emergency situation
#
e.
consent to criminal act
majority - can't consent. no effect in tort
modern trend - can consent. effective in tort
exc
- acts breaching the peace
- law seeks to protect certain class
eg) statutory rape
5.
6.
7.
This is also a good defense to defamation and privacy. The analysis is
exactly the same
FIRST STEP
1.
Determine if plaintiff had capacity
2.
If not, the consent is invalid (Limited exception: where consent is
implied by law, e.g., in emergencies)
SECOND STEP
1.
Determine if the consent was expressly given or is to be implied
2.
EXPRESS CONSENT
(1)
How to spot it: Words in quotation allowing D to behave in
a certain way (AHit me@)
(2)
If it exists, what should you look for? Facts relating to
(1)
MISTAKE
P=s consent by mistake  still valid defense
unless D caused the mistake or knows of the
mistake and takes advantage of it.
(2)
FRAUD
1)
Not a defense (invalid consent)... BUT fraud
MUST go to an essential matter
2)
fraud as to collateral matter  still valid
consent
(3)
DURESS/COERCION
1)
Not a defense (invalid consent) ... BUT
threats of future action/economic
deprivation  NOT duress
2)
So consent is these cases are valid
(4)
If sufficient, these facts can undo express consent
IMPLIED CONSENT
(1)
Apparent Implied Consent (It arises in two ways)
(1)
1st: Customs and usages, and/or
1)
P goes to place or chooses to participate in
activity where certain invasions are
customary
1)
i.e.> rush hour pushing and shoving
in subways
2)
i.e.> sports  consent to ALL
customary physical contact ...
includes customary contact even if
they violate the rules ( ... fighting in
ice-hockey)
nd
(2)
2 : D=s Reasonable Interpretation and P=s
Objective Conduct
1)
 invite  to dinner ...  bring flower and
notices dim lights, candles ... generally
romantic mood prepared by  ... after dinner
 kisses  ... she sues for battery  =s
acts will be considered as consent to 
1)
BUT IF ...  tries to rape  then NO
consent because NOT a reasonable
interpretation.
2)
P=s subjective thought process 
IRRELEVANT ... ONLY what D reasonably
views regarding P=s objective conduct
3)
D=s exceeding scope of consent given by P
...returns D to liability for intentional tort
1)
i.e.> plastic surgeon doing more than
necessary ... in addition to nose job
2)
i.e.> customer in butcher shop ...
CANNOT go behind where the meat
1)
3.
8.
is being kept and sliced (reference to
Food Lion suit against ABC News)
(2)
Implied by law (e.g., emergencies)
THIRD STEP
1.
Determine if defendant stayed within the boundary of any consent
given
2.
If not, the privilege may be lost
2. Self-defense, defense of others, defense of property - called "privileges"
a. Two basic Qs
1) Is one of these defenses (privileges) available in the facts?
2) If so, did D use only the requisite amount of force or excessive force (limit himself to proper
force)?
didn't D use excessive force?
b. Availability of privileges: timing & accuracy
1) Timing
a) The tort must be imminent, or in the process of commission.
 However, not a/t the fact (no revenge or retaliation).
# during hot pursuit - defense
2) Accuracy: level of belief concerned
a) In self-defense and defense of your property: good faith, reasonable belief that your interest has
been threatened is OK, even if your belief turned out to be inaccurate and wrong.
b) In defending a third person: good faith belief is not enough. Privilege only if the third person
was really threatened in fact. (Common law’s ‘mind your own business’ view)
only if actual attack. = you must be correct. you act on your own risk
NY - will protect you if reasonable belief
<NY distinction>: NY does not follow the majority rule in defense of third person. NY will protect
the D if he was in good faith, even though his belief was inaccurate.
#
c.
no general duty to retreat
exception see ii)
#
d.
not available to initial aggressor
c. Degree of Force
1) D must use only proportionate force to the threat. (reasonable and necessary force to the
nature of the attack)
proportional to the threat. (reasonable force, necessary force)
2) Deadly force
a) In self defense/defense of 3rd person: allowed as long as human being is involved.
<NY distinction> Duty to retreat before using deadly force unless you are at your home, or
you are a police officer.
b) In defending your property: never allowed to use deadly force.
(eg.) Deadly traps, spring gun, man-killing dogs, etc.
c) Verbal demand must be made prior to the use of deadly force.
#
2)
defense extend to 3rd party injuries
in the course of defending, accidentally injure bystander - protected
but may be liable on a negligent theory if his conduct warranted it.
9.
FIRST STEP - TIMING
1.
Determine if the ATiming Requirement@ has been satisfied
2.
The Test
(1)
The tort defended against is
(1)
now occurring, or
(2)
just about to occur (IMMINENT DANGER)
(2)
If the tort has already occurred, there is no defense
(1)
NO REVENGE
(2)
NO RETALIATION
3.
Hypo: I tortiously slug you, knocking you down, and then walk away. You get
up, race after me and slug me. O.K.? No (Past)
4.
10.
Hot Pursuit Doctrine: If one is in hot pursuit of another who has
wrongfully taken his/her chattel, the tort is regarded as still
occurring. Thus, the timing test is satisfied
SECOND STEP - ACCURACY
1.
Determine if the specific ADefense Test@ has been satisfied
2.
The Self-Defense / Defense of Own Property Test
(1)
One need only have a reasonable belief that a tort is being
committed
(1)
Even if there is mistake  reasonable mistake by D
can be recognized as self defense.
(2)
There is no duty to retreat
(3)
3.

Modern Trend: Duty to retreat before using serious force if
one (I) can do so safely, and (II) is not in his/her own home
The Defense of Others (Third Person) Test
(1)
Act at your own peril rule
(1)
One must be correct about the commission of the
tort
1)
don=t butt in unless you=re SURE
2)
D must have been sure and his determination
of the situation MUST be correct.
3)
EVEN IF reasonable interpretation, D will
NOT be protected IF his analysis of the
situation turns out to be wrong.
(2)
Modern Trend: Reasonable belief is enough
NY Distinction
Reasonable belief by D is permitted even as to defense of third persons.
(3)
Hypo: Bowater has his arm raised and clearly appears ready to hit Lulu.
Doofus sees this and hits Bowater to stop it from happening. In fact,
Bowater was acting out a scene from a movie and was not going to hit
Lulu.
4.
11.
The Defense of Property Test: One need only have a reasonable
belief that a tort is being committed
THIRD STEP - DEGREE OF FORCE
1.
Determine if defendant has stayed within the boundary of the
defense privilege
USE OF DEADLY FORCE?
Self-Defense / Defense of Third Person
may use deadly force IF one believe that such
force of threat is imminent and will be used
against him.
2.
3.

Defense of Property
NEVER allowed
BUT Bluffing by using a means of deadly force
(i.e.> unloaded gun) is allowed
CANNOT use spring guns to protect property
How are the boundaries exceeded?
Proper Force Rule One: For self-defense and defense of others
one may use reasonable force (including even deadly force)
NY Distinction - Duty to Retreat
IF you can retreat before using deadly force, MUST retreat first UNLESS in;
 own dwelling
 police officer
4.
Proper Force Rule Two: For defense of property one may use
5.
reasonable force, never to include force calculated to bring about
serious bodily injury
Bar Exam Tip: AIn your own home@ fact pattern
(1)
Self-defense, Defense of others  You can use more force
(2)
Abandoned house (Defense of property)
3.
reentry into land - no privilege under modern law b/c summary procedure available
4.
recapture of chattels
only by peaceful means. force may be used only when in hot pursuit
may enter upon wrongdoer's land to remove chattel
5.
privilege of arrest
3. Necessity - no defense in personal injury tort, defense only in property torts
a. Public necessity defense: absolute privilege- no recovery
1) D interferes someone else's property interest in emergency situation to protect the community as a
whole or significant number of people
(eg.1) Blowing up the house to break San Francisco fire.
(eg.2) Killing a rabid dog to protect children.
b. Private necessity: qualified privilege
1) D interferes someone else’s property in an emergency situation to preserve your own safety, health,
or property.
2) No punitive damages but you have to compensate actual harm.
(eg.1) Plane crashed and I landed, in emergency, on corn filed to protect my skin.
 Private necessity case. I still have to pay the harm done on the corn crops.
(eg.2) Snoring bull. You run and hide in a tool shed.
 Trespassed but no harm. You are not liable anything.
- you must pay actual damages
- but you can invade, owner is not allowed to refuse
- no punitive damage, no liability if no actual damage
12.
FIRST STEP
13.
1.
Make sure the tort defended against is PERSONAL PROPERTY
TORT (Most likely it will be trespass to land, chattel, conversion)
2.
Hypo: Bowater has his arm raised and is just about to strike Doofus. Doofus
strikes Bowater to stop it from happening.
(1)
Necessity privilege (Necessary)? No
(2)
But Self-defense
SECOND STEP
1.
Determine if it is a Apublic@ or Aprivate@ necessity case
2.
APublic Necessity@ for the benefit of many is an absolute
unlimited privilege. No liability
(1)
i.e.> shooting mad dog running around in streets
3.
APrivate Necessity@ for the benefit of a limited number is a limited
privilege and the defendant will be liable for actual damage caused
(1)
QUALIFIED DEFENSE
(1)
D must pay for harm he causes
1)
i.e.> private jet crash landing in corn field ... pilot
must pay for damaged corn
(2)
(3)
Such D is NEVER liable for nominal or punitive
damages
1)
i.e.> hiker confronted with raging Bull runs
away and trespasses into a shed in P=s farm
... Trespass suit to land suit by P ... NO
damage done by hiker so NO
nominal/punitive recovery is allowed b/c it
was an emergency situation.
P CANNOT throw D off land so long as the
Emergency persists
1)
i.e.> Bull still hanging around tool shed ... P-Farmer
tries to force hiker out of tool shed.
(2)
4.
interference with property interest in an emergency
situation to protect interests of his own (kind of like private
right of eminent domain in emergency situations)
Necessity prevails over defense of property
5.
Hypo
(1)
(2)
Defendant ties his boat up at plaintiff=s pier to get off lake
during a storm. The boat bangs against pier during storm
causing damage. What result?
(1)
No tort (Necessity)
(2)
But liable for actual damage caused
Plaintiff tries to keep defendant from doing this because he
does not want him to trespass on his land. Result?
Necessity prevails over defense of property
II. HARM TO ECONOMIC AND DIGNITARY INTEREST
A. DEFAMATION - constitutionalized but we are focusing on strict common law.
17.
18.
This tort redresses injury to reputation
Prima Facie Case
1.
Defamatory Statement About This Plaintiff
2.
Publication
3.
Injury to Plaintiff=s Reputation
4.
AND IF FIRST AMENDMENT APPLIES
1.
Falsity AND;
2.
Fault
1. Elements of Common Law Defamation (private speaker, subject person and subject matter)
a. Defamatory statement
What is a defamatory statement? Defamatory assertion of fact
1) Any statement that adversely affects someone’s (only living people) reputation
 Factual statement concerning honesty, loyalty, virtue (morality).
2) Mere insult or name calling is not enough.
. b/c supplies no facts
 Statement should have concrete aspect to it.
(1)
mere insults are NOT defamatory
(2)
Hypo
1)
2)
Someone calls you a Ano-good S.O.B.@
Defamatory? No (Just name calling)
Someone falsely accuses a lawyer of stealing
money from an estate she=s probating?
Defamatory? Yes
3) You may have a defamatory statement that is innocuous on its face.
"on its face" or implied (apparently innocuous, become defamatory by adding underlying facts
 Apparently innocuous statement becomes defamatory, if P proves innuendo and inducement
by showing additional underlying facts.
(eg) Jones stays in Hotel California whenever he is in DC.  P can show that Hotel
California is a house of prostitution and everyone knows it. This statement implied
he cheats his wife and P’s reputation is shot to hell b/c he is a minister.
3.
The AInterpretation Process@: Where statement is not clearly
4.
defamatory on its face and/or does not clearly refer to plaintiff on
its face
If the statement is not defamatory on its face, plaintiff must plead
extrinsic fact (inducement) and establish the defamatory meaning
from them by innuendo
(1)
i.e.> D statement: Awhenever X goes on a business trip to
Atlanta he stays at Melrose-Motel.@
(1)
P argue Melrose is a whorehouse and everyone who
listens would interpret and question his chastity
(2)
Proof of inducement and innuendo  BUT P must
prove all the elements
(3)
4) Statements of opinion can be defamatory statement if it implies possession of underlying facts.
actionable if it appears to be based on specific facts & those facts are expressly alleged.
NY:
 If reasonable person would conclude the statement conveys a factual meaning, the opinion is
actionable as well.
broader protection for freedom of speech
analyze "context, tone and purpose"
5.
e.
only living people can defamed. legally
impossible to defame a dead Can ONLY defame a LIVING person.
6.
If the statement does not clearly refer to plaintiff on its face,
plaintiff must establish colloquium to show he/she was the one
intended
(1)
Hypo: AHe burned down his own barn@
(1)
(2)
Defamatory?
1)
Not defamatory on its face
2)
Plaintiff must plead extrinsic fact
(Inducement, Innuendo) (e.g., to defraud
insurance company)
Refers to plaintiff?
1)
Not clearly refer to plaintiff on its face
2)
Plaintiff must establish colloquium
5) Group
 Large group: nobody has cause of action
 Small group: every member can sue (eg. 3 people)
b. "Publication"
1) In defamation context, publication means that the statement is revealed/communicated to third
person.
 It is enough if D tells another person other than the P.
the ill chosen words have to be disclosed to a 3rd person. if 3rd person can understand,
enough
#
only intent to publish, not the intent to defame, required
#
both primary publisher and republisher are liable secondary publishers
(only disseminating person) is liable only if they know or should know of
the defamatory content
2) One can even publish by making a statement negligently and third person hears it. (if the third
person has ability to understand the statement.)
 Don’t have to be on purpose.
(eg.) I tell you that you have herpes, but I have negligently forgot to turn the microphone
off.
19.
Requirement Two - Publication
1.
First
1.
Must be communication with third person
(1)
one-on-one communication  NO harm to reputation
(1)
defamation MUST be disclosed to at least one
person other than the parties
2.
Hypo: I walk up to you and say: ATell me, you crook, are you still
stealing money from that corporation you=re working for?@
There=s no basis for my statement. Liability for defamation? No
2.
Second
1.
Communication (publication) may be either intentionally or
negligently made
2.
Hypos
(1)
(2)
3.
Defendant makes defamatory statement about plaintiff
directly to third person. Publication? Yes (Intentional
publication)
Same Acrook@ hypo as above. Statement is made in loud
voice in crowded room, and is overheard by others.
Publication? Yes (Negligent publication  Reasonably
foreseeable)
Third
1.
The third person must be capable of understanding defamatory
conduct
2.
Hypo: Defamatory statement is made in Russian to someone who does not
understand the language  No publication
c. Damage, maybe (b/c some P have to prove actual damage; other P have presumed damage)
3.
NOT all defamation provides for damages ... P MUST show
damages
1) Key distinction b/t libel (written) and slander (spoken)
a) Libel: defamatory statement in a permanent form; written down, recorded, filmed, etc.
b) Slander: defamatory statement that is oral, one that disappears a/t being uttered.
verbal only: in oral utterance (slander = spoken)
2) Damages and libel
a) Since libel is permanent, P gets the presumption of damage (i.e. don't have to prove damage)
memorized defamation
presumed damage (i.e. don't have to prove damage); b/c more
durable, perpetually damage reputation
3) Damages and slander
a) Slander per se: If spoken defamatory statement fits into one of the following categories, it is
slander per se and damage is presumed.
i)
statement harming reputation concerning P's conduct in business/profession;
ii) statement imputing P w/ crime of moral turpitude - any serious crime;
1)
statement that P is guilty to a crime
of moral turpitude ... embezzlement,
child molest, counterfeiting money
iii) statement imputing P w/ loathsome disease (leprosy, venereal disease - syphilis,
gonorrhea, chlamydia, etc.)
iv) imputing unchastity to a woman.
2)

Imputing unchastity to woman
1)
gender specific  NOT apply to males
NY Distinction ONLY
3)
Imputation of AHomosexuality@
1)
AMary is a lesbian@
v) <NY only> - imputation of homosexuality
b) Not slander per se - P have to prove actual (specific) pecuniary damages.
 Actual economic harm such as losing job, K, or revenues declined at the place of business.
(2)
4.
Slander NOT per se
(1)
P MUST prove damages (actual economic loss) in
order to bring a claim
(2)
Social or emotional damages are NOT enough.
Second
1.
Injury is not presumed for slander not per se
2.
In this case plaintiff must prove special damage (money damage e.g., loss of job, failure of K - But not humiliation) to show injury
to reputation
<NY distinctions> : Different rule for damages
Statement at issue is?
Defamatory on its face and slander per se ?
Special damage required?
<Libel>
<Slander>
No
No
Defamatory on its face and not slander per se?
No
Yes
Defamatory only by extrinsic fact and slander per se?
No
Yes*(No)
Defamatory only by extrinsic face and not slander per se?
Yes *(No)
Yes
* are different from common law rule ( ).
2. Affirmative Defenses (def has a burden of proof) to Defamation:
a. Consent
1) Expressed or Implied
2) Consent is a complete defense to defamation and the rules relating to consent to intentional tort
apply here.
b. Truth
1) Complete defense to Common Law defamation in terms of private context.
 C/L assumes that peoples are all nice and defamatory statement is presumed to be false.
5.
Truth (unless First Amendment case)
1.
IF D can prove factual accuracy of statement, THEN can be a
defense.
c. Privileges: 2 kinds
6.
: Given where from a societal standpoint we want to encourage someone
to speak out without worrying about defamation liability
1) Absolute privilege - completely immunize, 2 kinds
a) Communication between spouses
 If H libels another person to his wife, that 3rd person can’t sue him for defamation.
b) Statements made in conducting of government affairs (3 branches, state or federal)
 Remarks made during judicial proceedings, by legislators in debate, etc.
(1)
Statement Made By Three Branches of Govt. In conduct of
Official Duties
(1)
executive, legislative, and judicial. The judicial
branch is the favorite (Anything said in the course
of litigation that is reasonably related to it will be
absolutely privileged)
Even evil defendant has absolute privileges
#
(3)
compelled broadcast or publication
2) Qualified privilege (concept, not a list): 3 requirements
largely based on common sense, can be lost trough abuse
speaking in good faith for a socially beneficial purpose
good faith: believe that it is true
2.
: Can be lost if abused
When to give qualified privilege: No definitive test. If you feel that we would like to
encourage this type of communication, give defendant a qualified privilege
a) Socially useful purposes: (e.g., job reference, credit reports, police investigation)
b) The allegedly defamation part must be relevant to the purpose of the communication.
c) P speaks with good faith belief in accuracy of what he is saying.
(eg.) Professor’s letter of recommendation for judicial clerkship. Stating cheating scandal
turns out to be inaccurate. He can claim qualified privilege if 3 requirements are met.
However, stating suffering a loathsome disease would not be privileged b/c it is not
relevant to the purpose of communication (might not be a relevant criteria in selecting
a judicial clerk)
#
NY: fair and true report of public proceeding - absolute privilege
(1)
Typical Situations
(2)
(1)
Recommendation
(2)
Statement made to police investigations
Favorite Bar Exam Fact Pattern
(1)
Landlord  Reference
(2)
Professor  Reference
(3)
Employer  Reference
3. Constitutional Defamation (1st Amendment):
* If the subject matter of defamation is of public concern (eg.: Whitewater, military
3.
performance in Bosnia, etc. (e.g., abortion)
)
constitutional defamation, 1st amendment become relevant.
4.
: Two neighbors are having a boundary line dispute. One allegedly
defames the other. First Amendment case? No
a. Two Elements (in addition to elements of C/L defamation): Falsity and Fault
iv)
falsity
v)
fault on behalf of D
7.
If the First Amendment applies, we
1.
Add two prima facie case requirements, and
2.
Subtract one defense (Defense of truth)
1) The P must show that the statement is false.
 This reverses the burden of proof from that of C/L rule of defamation, which has the truth of
the statement as an affirmative defense.
3.
(This means the burden of proof as to truth or falsity is shifted
from the defendant to the plaintiff)
 In other words, if statement concerning public matter/public figure is true, P can’t make a
prima facie case. Whereas in C/L case, P can make out a prima facie case even if statement
might turn out to be true.
4.
Effect on Defenses: Subtract the defense of truth. Why? Because
the prima facie case is done before the defenses
2) D’s fault = D's lack of good faith & sincerity. Some badness of D should be shown.
a) 4 types of D’s state of mind:
i)
Intent: D spoke the falsehood and knew it was a lie. (knowledge as to its falsity)
ii) Recklessness: D spoke the falsehood even though he had grave doubts as to its truth
(reckless disregard as to its falsity)
iii) Negligence: D spoke the falsehood and was careless about the true level of its accuracy
(negligent falsehood)
iv) Good faith: D spoke the falsehood, but in good faith belief of its accuracy (no fault)
b) If P is public figure or public official, P must show D's malice (knowledge or reckless
disregard as to its falsity on D’s part) to satisfy falsity requirement.
c) If it is public matter but P is a private figure, D's negligent falsehood is enough to satisfy the
prima facie element of the constitutional defamation case.
Malice: deliberate false speaking (knowing that it's false) recklessly disregard the
accuracy
public matter but private person: D's negligence is enough
#
damage - only actual injury
* Note: Rationale for 1st amendment defamation rule
1) To encourage discussion and debate about issues of public concern.
2) To avoid chilling people from speaking, we give them a leeway and say only if you deliberately
give falsehood, we will hold you liable.
#
(not in class but in the original outline):
the state of D's mind concerning the accuracy of the words in ?. Levels:
A. knew that they are a lie. B. with reservations. C. negligence. D. no fault
- good faith. When the P sues public official or figure she must prove
knowledge or reckless disregard - A,B; if private figure mere C. suffices.
8.
Requirement Five - Fault
1.
Plaintiff must prove defendant at fault
2.
There are three types of fault
(1)
Intentional
(2)
Reckless
(3)
Negligent
3.
Which type of fault does the plaintiff have to prove?
(1)
This depends on the type of plaintiff
(2)
Is plaintiff a public figure or a private person?
4.
Public Figure Plaintiff
(1)
He/she must prove either intentional or reckless tortious
conduct
(2)
N.Y.Times v. Sullivan AMalice@ Test: The statement was
made either (I) knowing it was false, or (II) with reckless
disregard as to its truth or falsity
(3)
5.
6.
Bar Exam Note: If plaintiff is a public figure, assume
that the matter is one of public concern (The First
Amendment)
Private Person Plaintiff
(1)
He/she must only prove negligent tortious conduct
(1)
Must prove actual damage
(2)
AActual damage@ is not confined to money
damages. It may encompass other forms (e.g.,
humiliation)
(2)
However, if plaintiff can prove malice, he/she should for
only then will plaintiff be allowed to get presumed and
punitive damages and not have to prove actual damage
The Falwell Case Rule
(1)
Hypo: Falwell sued a magazine for defamation and lost on
First Amendment grounds. He then shifted to intentional
infliction of emotional distress argument. Result?
(2)
If plaintiff loses defamation lawsuit on the First
Amendment ground, plaintiff is not allowed to rely on any
other tort claim
B. INAVASION OF RIGHT TO PRIVACY - appropriation, intrusion, false light, disclosure.
1. Appropriation
a. D uses P's picture or name w/o P’s permission for D's commercial advantage.
 In advertising or promotion of product or service.
b. Mere economic benefit to the D or using P’s name and picture in context of dissemination of
information doesn’t make appropriation (e.g., news or biography is O.K.)
9.
10.
Defendant uses sport hero=s photograph in an advertisement for
defendant=s goods without getting sport hero=s permission.
1.
Actionable? Yes (Commercial advantage)
(1)
look for use by D as part of advertising
2.
Exception
(1)
newspapers and book writers allowed to use without prior
permission
Construction of term Acommercial advantage@
1.
It is limited to the promotion of goods or services
2.
Hypo: I write a story about you which I sell to the newspaper for
$1,000. Privacy Branch One violation?
(1)
No (Not promotion of goods or services) - Economic
benefit alone is not enough
<NY distinction> NY recognizes only this kind of privacy by statute
#
must be capable of identification
 Health clinic or HMO used a picture of one of its doctors in its promotional calendar w/o his
permission. Dr. sued HMO for violation of NY appropriation statute and won.
 Fashion model’s leather bomber jacket case: NY magazine won. Court admits that the picture
was to show that bomber jacket was the trend of that year.
2. Intrusion
a. Invasion of P's privacy or seclusion in the way that would be objectionable by an average
reasonable person, i.e., invasion of your privacy sphere - eavesdropping device, spying, telescope
peering into someone’s window. wiretapping, spying
 If you install eavesdropping device under the phone, it is trespass and intrusion.
 If you cut into the public phone wire, it is only an intrusion.
b. Need not be a physical invasion of the land.
c. Not actionable when no reasonable expectation of privacy.
 P can’t be on the public street. However, you don’t have to be in your house (car, hotel room,
etc. will be reasonable expectation of privacy)
(eg.) Celebrity on the street harassed by photographer - not this tort. Maybe intentional
infliction of emotional distress, which is fall back tort.
11.
12.
13.
Requirement
1.
P must be in a genuinely private place or have a genuine
expectation of privacy
(1)
i.e.> home, car, hotel room
2.
NO requirement of physical entry by D ... fact that D never entered
P=s property is IRRELEVANT
(1)
i.e.> tapping telephone at the telephone pole ... telescope
used to peep into one=s home
Examples
1.
Evesdropping, covert video surveillance, wiretapping
The Test: Common sense fact analysis. Simply ask yourself: Would a
reasonable person object to this kind of intrusion? If so, follow your
instinct
1.
Hypo: Jackie Onassis has a photographer who follows her taking pictures
wherever she goes for months on end. No matter how often she requests him to
leave her alone, he continues to Ahound@ her. Privacy Branch Two violation?
14.
(1)
No. Not a private corner of the world (e.g., home, office)
(2)
But consider Aintentional infliction of emotional distress@
2.
Hypo: Peeping Tom zeroes in on plaintiff=s bedroom windows
with high-powered binoculars. Violation? Yes
NOT recognized in NY
3. False light - least tested
a. Dissemination of information (more than "publication" in defamation case, must be very broad not just to a third person) that mis-characterize (false light) P
15.
16.
The APublication@ Branches: What does the term Apublication@ require?
It requires the wide dissemination of these statements
Compare defamation: Communication to even one person is sufficient
b. False light largely applies to non-defamatory falsehood, can even be complimentary or laudatory
falsehood.
(eg.) Exaggerating a person’s heroism to make the movie more exciting. P can say he
didn’t save the whole village, but only one guy.
#
iii)
false light must be objectionable to a reasonable person
#
iv)
if the subject matter is public interest, need malice on D.
(1)
(2)
17.
18.
i.e.>mis-characterizing political belief ... telling a Democrat
that he is a Republican to other people
NOT an intentional tort .. can be made by negligence
(1)
newspaper picture + erroneous caption
Hypo: ASenator Percy@ story. Headline with picture of my friend right underneath it
1.
Defamation - No
2.
Branch Three
But note: Effect of Time v. Hill
1.
N.Y. Times v. Sullivan Amalice@ test applies where a matter is of
Apublic concern@: The statement was made either (I) knowing it
was false, or (II) with reckless disregard as to its truth or falsity
2.
If you encounter such a case on the bar exam, the plaintiff should
lose (As a practical matter this is too hard to prove)
4. Public disclosure of private facts
a. Widespread disclosure or dissemination of private information
ii) of confidential information,
private information that would be objectionable to the average person.
(eg.) Disclosure that P has syphilis in company newsletter.
#
b.
even if facts are true, lia may attach
#
c.
proof of special damage unnecessary - emotional distress and mental
anguish are sufficient damages
b. Defense: If the info is newsworthy - not actionable. not private facts.
 If a celebrity is involved, it is newsworthy per se. (J. Flowers and B. Clinton)
 Your picture in the Yankee stadium and your boss, who was told that you were sick at home,
will see it. You can’t sue the newspaper for disclosure b/c it is not private facts.
3.
19.
20.
Widespread dissemination of truthful and confidential information
regarding P that would be objectionable to an average person
(1)
i.e.> academic records, financial, medical records ...
4.
Subject to
(1)
Newsworthy Exception
(1)
if newsworthy/matter of public interest, then
allowed.
5.
The disclosed facts must be genuinely private
No defamation or AFalse Light@ because statement is true
The Test: Common sense fact analysis. Simply ask yourself: Would a
reasonable person object to the publication (wide dissemination) of these
facts? Are they sufficiently Aprivate@? If so, follow your instinct
21.
Hypo: Company employee newsletter accurately reported that employee had just been
successfully cured of venereal disease. Privacy Branch Four invasion? Yes
22.
Favorite Bar Exam Fact Pattern
1.
Plaintiff is photographed in a place generally open and available to
the public. This is not a private fact
2.
The AIntimate Romantic Restaurant@ Hypo: Generally open to the
public  Not a private fact
3.
The Gay Person NOT disclosed at work ... but is known to family,
close friends, and in school
(1)
disclosure by one with the info to P=s workplace  invasion
NOT recognized in NY
23.
5. Defenses to Invasion of Privacy
a. Consent: for all 4 kinds of privacy
b. Absolute/qualified privileges: for false light and disclosure.
- B/t spouse, Gov’t affairs, socially useful purpose.
#
c.
truth or good faith is not food defense
C. MISREPRESENTATION & FRAUD (C/L concept developed from sale & purchase)
1. Intentional Misrepresentation (fraud, deceit): 5 requirements for cause of actions
a. Affirmative misrepresentation by D is required unless there is a duty to disclose
Silence doesn’t make a fraud. - silence not enough.
#
active concealment actionable

[QE] Must be of a material past or present fact.
1.
2.
First: Must be an affirmative misstatement of fact, not an opinion,
unless rendered by someone with superior skill in the area. This is
because of the justifiable reliance requirement
(1)
keeping adverse info to oneself is O.K.
(1)
NO duty to make disclosure
Second
(1)
Silence is not enough. One must affirmatively mis-speak
(2)
Exceptions
(1)
Fiduciary relationship
(2)
Real property sale where plaintiff cannot reasonably
discover material facts, e.g., house built on fill
(3)
Defendant=s prior statements have misled plaintiff
b. Scienter
 Must know/believe that the statement is false when made.
 On purpose (knowing it to be false) when you make the statement, or reckless [=Scienter]
 Negligence may be a basis for negligent misrepresentation only if the D is in business or
professional capacity, who breaches her duty.
c. Intent (goal to lure the P’s reliance)
1) D intends to induce P's reliance
2) The statement must be on material facts of P’s actual reliance.
 Intent to induce particular P is not necessary, reasonably foreseen 3rd party is actionable.
#
#
intent to induce particular P is not necessary
reasonably foreseen 3rd party is actionable
d. Justifiable reliance
1) Statement relied upon must be of fact or opinion.
 Statement of fact - anyone
 Statements of opinion - only by expert.
2) If made by person w/ superior expertise or knowledge in the subject matter, more likely to be
intentional misrepresentation.
e. Damages
1) Must suffer actual pecuniary damages.
(eg.) You got a car $1200, later you paid $300 to fix the transmission, but FMV is $1500.
 You have no damage.
#
The C/L fraud - difficult to prove ::> caveat emptor (let the buyer beware)
24.
25.
26.
27.
28.
29.
Requirement Two - Scienter
1.
AScienter@ (intentional misrepresentation) equals malice
(defamation)
(1)
intent or recklessness to deliberately and knowingly make
statement
2.
The Test: The statement was made either (I) knowing it was false,
or (II) with reckless disregard as to its truth or falsity
Requirement Three - Intent to Induce Reliance
1.
Hypo: Plaintiff and Defendant are out having a few beers and
social chit-chatting. Defendant makes a misstatement about his
company while bragging about his job. Plaintiff buys stock in this
company the next day. Liability? No
Requirement Four - Justifiable Reliance
1.
Favorite Exam Fact Pattern
(1)
Fact v. Opinion
(2)
You cannot justifiably rely on an opinion (unless rendered
by someone with superior skill in the area)
2.
Note: There is no duty to investigate to show reliance is justifiable
Requirement Five - Causation
Requirement Six - Damages
1.
Economic harm
Defenses: None!
2. Negligent misrepresentation: only applies b/t merchants, commercial transactions
a. Misrepresentation made in business or professional capacity
b. Breach of duty toward particular plaintiff.
#
to persons to whom the representation was made or to persons D knew would
rely on it.
c. Causation
d. Justifiable reliance
e. Damages
# 4.
Comment One: Negligence replaces scienter
Comment Two: Can only be used in a commercial setting fact pattern
32.
Hypo: Next-door neighbor makes a negligent misrepresentation over the
backyard fence. Liability? No
wrongful institution of legal proceedings - not likely to be tested
1)
2)
3)
# 5.
30.
31.
Malicious Prosecution
wrongful civil proceedings
abuse of process
interference with business relations - not likely to be tested
D. NY only! - COMPETITIVE TORTS
1. Tort of Inducing Breach of Contract: 5 requirements
a. Valid, existing, not terminable at will contract.
b. Knowledge of the contract by the D.
c. Persuasion by D to convince a party to abandon the K.
d. Subsequent breach of K by the party the D attempted to convince.
e. Absence of any privilege
 Parental advise about K entered into by child
 Lawyer advising a client to breach.
 (cf.) Competitors are not privileged.
2. Theft of a Trade Secret (unlawful taking of secret)
a. Any secret info that gives a business a competitive advantage (includes customer lists.)
 Common scenarios: trader's insider who leaves company and industrial spies.
3. Three Infringements: of copyright, trademark, and theft of ideas, etc.
2.
INTERFERENCE WITH BUSINESS RELATIONS
1.
Prima Facie Case
1.
Valid Relationship Between Plaintiff and Third Person
1.
This relationship may be either existing or prospective
2.
Hypos
(1)
You and I have an existing contractual relationship. Doofus
is trying to persuade you break the contract (Existing
relationship)
(2)
You and I are negotiating to enter into a contract. Doofus is
trying to persuade you not to do so (Prospective
relationship)
2.
Defendant=s knowledge of Relationship
3.
Intentional Interference (Not negligence)
4.
Damage
2.
Defenses
1.
PRIVILEGES
1.
This is a question of fact
2.
The most important facts are:
(1)
Defendant=s persuasion conduct
(1)
e.g., physical aggression v. mere oral suggestion
(2)
The Aharsher@ the conduct, the harder it is to get a
privilege
(2)
Relationship between parties
(1)
Plaintiff and defendant: Are they competitors? If so,
there is a Acompetitors=@ privilege to cover
interferences with prospective relationships
(2)
Between defendant and the third person: Are they
close relatives? Is defendant the third person=s
business advisor, lawyer, etc.? Does defendant have
a financial interest in third person?
2.
Bar Exam Tip: It is much easier for plaintiff to win when there is an
existing relationship (between plaintiff and third person) than prospective
relationship
3.
Prima Facie Tort (Recognized in NY)
1.
2.
Meaning
1.
Intentional infliction of pecuniary harm
1.
only in business context
Elements
1.
Intent to harm
2.
Causation - Consequent economic loss
4.
Inducing Break of Contract
1.
2.
Elements
1.
Valid contract between P and third party is NOT terminable at will
1.
i.e.> procurement K, output K
2.
Knowledge of D regarding K
3.
D persuades third party to abandon K
4.
Subsequent breach
Justification/Defenses
1.
When D, who induced the breach, is in ADVISORY capacity to P
1.
Parents, other blood relationship, teachers, clergy
5.
Theft of Trade Secrets
1.
6.
Elements
1.
Valid Trade Secret
1.
info that provides business advantage to owner
2.
the cannot be generally known
3.
owner must make effort to keep info secret
(1)
i.e.> software programs, circuitry designs, formula for
COKE, customer lists
2.
Taking of Secret for Improper Means
1.
Traitorous Insider
(1)
D will have originally learned of secret through voluntary
disclosure of P under a confidential
relationship/circumstance and then turn around to use secret
for own advantage
2.
Industrial Espionage
(1)
stranger to P=s enterprise who learns of secret through
unsavory means
(1)
i.e.> breaking + entering to photo copy or bribing
competitor=s employee for info
Tort and Intellectual Property
1.
2.
3.
4.
Trademark
1.
Brandname
1.
CANNOT use in a way to cause confusion
(1)
Test: whether public will be confused about D=s use of the
trademark
2.
Generic words  NOT trademark
Copyright
1.
Any works of authorship are protected
2.
O.K. to mimic general idea  BUT cannot copy absolutely
Patent Law
1.
Protect inventions
2.
Must get govt. approval
3.
Once patent is obtained ... CANNOT copy without permission
Duration
1.
Trademark

perpetual
2.
Copyright

life of author + 50 yrs
3.
Patent

20 yrs from date of application
III. NEGLIGENCE (20/40) ( 17 Q)
* 4 Elements of prima facie case: i) Duty, ii) Breach, iii) Causation, iv) Damages
- This should be the outline of every negligence essay answer.
*
20/40 Qs, consistently tested
prima facie case
i)
*
duty: D owed P a duty of care
ii)
breach: D failed
iii)
causation: D's failure was the reason for P's misfortune
iv)
damage: P's injury (economic or physical)
this will be the outline of every negligence essay.
A. DUTY - general rules: when we act, we impose some hazards around us. Law requires us
to take some steps to reduce them. Before you act, , to the extent that you
can do so relatively inexpensively take advance
precautions to reduce risk imposed to others.
[Two separate basic issues to determine the standard of care]:
i) To whom do you owe a duty? = foreseeable P
ii) How much duty do you owe?
1. Who do you owe to?
a. Duty to foreseeable P only (people in the "zone of danger"); this is exact common sense issue.
 On MBE, virtually all Ps are foreseeable.
4.
Duties of care are only owed to foreseeable plaintiffs
1.
NO duty owed to unforeseeable plaintiffs
2.
Bar Exam Observation: On the bar exam, the plaintiff will almost
always be foreseeable

d. Two different views
5.
Exception: Unforeseeable Plaintiff Fact Pattern: Negligent conduct (i.e.,
breach of a duty) directed towards clearly foreseeable plaintiff ultimately
injures someone else
1.
Approach One (Cardozo Rule - Majority Rule): Plaintiff is
foreseeable if plaintiff is within foreseeable zone of danger
(1)
Apeople who are FAR AWAY@ (foreseeability = physical
proximity)
1) Cardozo/majority view: only those in the zone of danger (determined by proximity) are
foreseeable P. (i.e. 2nd is foreseeable only if she establishes that a reasonable person would have
foreseen a risk of injury to her in the circumstance.)
2) Andrew/minority view: D has a duty of care to everyone who suffers injury is foreseeable.
b. Foreseeable as a matter of law; two categories of people automatically foreseeable P
1) Rescuers (as long as he is not wanton.)
6.
ALWAYS owe duty to a rescuer
1.
because a rescuer is always considered FORESEEABLE
2.
i.e.> X goes mountain climbing ... rope  negligently manufactured
... X involved in mountain accident ... Y decide to come to
assistance ... Y dies while trying to rescue X
(1)
Y=s wife sue rope manufacturer
(2)
Q> duty owed?
(3)
Ans> YES ... always owe duty to rescuer.
2) Fetuses
(eg.) In striking a pregnant woman, whether P had no idea she was pregnant is not
relevant. Child may be P

NY Distinction - Fetal Injury

Negligent D Impacts Pregnant woman ... Does fetus have cause of
action?
i)
IF fetus is born alive

YES
ii)
IF fetus is born dead

NO

Dr. Negligently fails to detect birth defects ... any recovery by parents?
YES ... BUT only the cost of raising child and NOT recover for emotional
distress

Botched Sterilization ... any recovery for the failure?
NO ... because
Joy of new child > any economic loss
c. Example of not foreseeable: Unlocked door of public housing project would be used by rapist as a
location to drag his victim (a non-resident) into the project. A woman walking by is not a
foreseeable P for this type of harm.
<NY distinction>
a. Preconception  no foreseeable P: No recovery for the child's injuries caused by a tort committed
against the mother before the child was conceived.
b. No action for wrongful death when child is stillborn.
c. If doctor misdiagnose birth defect, parents may recover the out-of-pocket cost of care, but not
emotional distress. Child can not recover.
d. Failure of contraceptive procedure  No recovery even for parents when healthy child.
(the joy outweighs the injury.)
2. How much care? (what is the standard of care?)
a. Standard of reasonably prudent person under the similar/same circumstances
1) Hypothetical person (reasonably prudent person): very vague, but very predictable in so far as
conduct is concerned --- He is always careful.
b.
No discount for insanity, intoxication.
3.
Hypo: Doofus, on trial for negligence, contends he acted reasonably given his
I.Q. of 78. Result? Doofus loses

He always locks the car in parking lots/ always on vacation after arranging stop newspaper
delivery and someone water his plants/ always on vacation carrying first aid kit and danger
triangle in the trunk of his automobile/ wears a plastic pocket protector to avoid ink, etc.

This person would never spray lighter fluid on a BBQ fire.
2) This standard can make a D guilty/liable, even if he/she did his/her best b/c the standard is
objective (unforgiving).
(eg.) Stupid or mentally retarded D doesn’t matter.
3) Two principal exceptions
7.
Exceptions
1.
Superior Knowledge of D is included in the analysis
(1)
works to the disadvantage of D
(1)
Property Std.: RPP with the superior knowledge std.
2.
Physical Characteristics
(1)
Defendant=s physical characteristics (e.g., blind, lamed)
will be taken into account
(2)
RPP of the physically handicapped person std.
(1)
Bar Exam Tip: Be careful: To the extent that defendant knows
of his/her disability, he/she is supposed to act as a reasonable
person with it would act
i)
Any superior knowledge possessed by the D
(eg) You know there is an obscure stop sign on the intersection. If you fail to stop,
you will be liable b/c you didn’t use your superior knowledge.
ii) Physical characteristics: deaf, very tall
* You will be tested on verbal formula itself. You will be given a horrendous circumstances
hypo, with extremely harsh conditions and asked about the standard of negligence.
(eg.) Huge blizzard. Does the extremely harsh condition caused by the blizzard require extraordinary
care? No! Negligence standard is “the reasonably prudent person under the circumstances.”
eg)
driving under horrible weather, no visibility, traffic lights gone, etc. - P allege that
"therefore D should be extraordinarily careful"  not true: standard never
change. conditions are incorporated into "under the circumstances"
b. Special categories of Duty standards (Alternative duty standard)
1) Children
a) Kids under 4: incapable of negligence
(2)
Threshold inquiry if very young defendant:
Everybody is liable for intentional torts!!!
b) 4-18: the degree of care that would be exercised by a child of like age, experience, intelligence;
= very subjective. i.e. difficult to hold a kid for negligence
c) Exception: if the child is engaged in an "adult activity", return to adult standard of reasonably
prudent person under the circumstances.
(eg.) Operating a motorized vehicle
(3)
Where the child is engaged in an adult activity, the
reasonable person standard applies
1)
adult activity = operation of a motorized
mechanical device
1)
tractor, motorboat, snowmobile
2)
Hypo: Doofus, a teenager, is driving the family truck
to run errands and is in an accident  Reasonable
person standard applies
2) Professionals
a) Those who can be sued for malpractice. (especially doctors)
(3)
(4)
Professional = people with special skills providing special
services
The Standard: A reasonable professional in the same or
similar communities
(1)
look to behavior in real world of other Dr. (Industry
practice/custom is used as a litmus test for the
Defendant-Dr=s compliance to the std. of care)
(2)
Std. of Care is a LOCAL one
1)
physicians in similar size towns
1)
urban v. rural towns
(3)
Specialists: Do we take their expertise into account?
Yes
(4)
Beginners Standard: Reasonable person standard
b) The degree of care that is exercised by an average member of that profession in the same or
similar community (national majority rule & NY rule)
 Neither subjective nor objective. Rather empirical standard (looks into the world)
 Thus, expert witnesses always needed to testify regarding standard, unless
negligence is obvious
NY follows the "locality rule"
except specialist (must maintain national level)
 The "locality rule": Same or similar community recognizes the fact that medical
sophistication differs in urban city than in a country
 However, if a doctor is a specialist, he must maintain national level of standard.
c)
duty to disclose risks of treatment ;Doctrine of "informed consent": A doctor has a
duty to disclose to the patient the risks of the proposed treatment. If he does not, he puts
himself under additional risk.
 Exception = defenses
(i) Commonly known risks;
(ii) The patient declines to hear the information;
(iii) The patient is incompetent; or
(iv) Doctor concludes that the disclosure would be harmful to the patient.
#
NY:
limited to non-emergency
causation: i) reasonably prudent person in the patient's
position would not have undergone the treatment or
diagnosis if he had fully informed, ii) the lack of informed
consent was a proximate cause of the injury
iii) Bailor/Bailee - see outline,
#
a.
Duties owed by bailor
(1)
(2)
b.
Duties owed by bailee
(1)
(2)
(3)
c.
iv)
Gratuitous bailments:
inform only known dangerous defect
Bailment for hire
inform known or would have known defect
sole benefit of bailor bailment: liable for only gross
negligence
sole benefit of bailee bailment: liable for even slight
negligence
mutual benefit bailment: ordinary due care
modern trend: ordinary care under all the circumstances
Common carriers and innkeepers
very high degree - slight negligence.
The P must be a passenger or a guest.
(5)
(6)
#
v)
automobile driver to guest
a.
b.
c.
*
The Standard: They will be held liable for even slight
negligence
Bar Exam Tip: Be careful: Make sure plaintiff should be a
passenger or a guest
(1)
Hypo: Collision of a bus and a car
1)
Bus v. Passenger of a bus
2)
Bus v. Car
common law "guest rule" treat the guest as a licensee - driver has
a duty i) to warn of known concealed defects and ii) to exercise
reasonable care in the active operation of the car
in State w/ guest statute, only duty is to refrain from gross or
wanton and willful misconduct
if the "guest" creates an economic benefit by her presence in the
automobile, she is "passenger", as invitee. Driver has additional
duty to make reasonable inspections for dangerous conditions.
exam. fact will tell you whether the state has guest statute or not
3) Owners and Occupiers of Land
a) Situation that a D occupied or owned the land, and a P enter the land.
 How much care the D owe to the P?
 This so-called premises liability has infinite fact patterns. - This rules apply whenever you go
on property (rural, agricultural, businesses, home property, etc.).
The duty depends on i) cause of injury (activity or condition of land) and ii) the legal status of
the injured and whether she was on or off premisses.
The duty depends on i) cause of injury (activity or condition of land) and ii) the legal status of
the injured and whether she was on or off premisses.
(1) “What causes the injury?” is the first Q.
(a) Affirmative activity being carried out on the land
 You came to my house and I spelt on you.
 You run over by a tractor.
 You go to the mall and were punched by a security guard.
(b) Static Condition (eg. Hazard)
 You came to my house and slipped on the loose carpeting on the staircase.
 You went to the supermarket and injured by fixture’s falling.
 You crossed a rotten wooden bridge and fell onto the creek.
If a natural condition injures you - no recovery.
a.
to persons off premisses
(1)
by natural conditions on the property (thunder, falling
rocks, bugs living in the land) - no recovery
exc) urban tree rule = falling branches next to sidewalks in
an urban area (return to ordinary prudent standard).
(2)
#
ii)
by artificial conditions on the property - no duty
exc)
i)
ordinary prudence to protect passerby
unreasonably dangerous artificial conditions on the
property.
(3)
as to conduct of persons on property
duty of reasonable care
NY:
private use of public sidewalk - duty of care both the
municipality and the landowner to keep the installation in a
reasonably safe condition.
(2) “What is the status of a P as an entrant on the land?” is the second Q. - 4 status
b.
to persons on premisses
(a) Undiscovered Trespasser (Someone with no legal right on the land and whose presence
owner doesn’t know about)
the
i) Affirmative activity: No duty b/c the P is unforeseeable
ii) Conditions
: No duty
 So, P will always lose.
3)
undiscovered trespassers will ALWAYS
lose a negligence claim against the land
owner.
because they are ALWAYS considered UNFORESEEABLE
b.
infant trespassers - attractive nuisance doctrine
if the trespasser is a kid, reasonable care to avoid
a reasonably foreseeable risk of harm to a child.
(forget the chart)
P must show (i) dangerous condition present of
which the owner is or should be aware of, (ii) it
should have been foreseeable that kids would
come or the land had attractive nuisance, and (iii) a
condition is likely to cause injury, ie. dangerous b/c
of the child's inability to appreciate the risk, (iv) the
expense for remedy is slight compared to the risk.
The kids need not be injured by the item that
attracted them.
(b) Discovered Trespasser (Someone with no legal right on the land but whose presence
the owner knows about: eg - house refugees build a camp on my land and I know
that.) frequent trespasser
i) Affirmative activity: Reasonable prudence under the circumstances (Ordinary care)
ii) Conditions
: Very limited duty (D owes a duty for only those conditions that
satisfy a four-part test = known manmade death traps.)
 The condition must be artificial. (Not naturally occurred but created by human being)
 The condition must be highly dangerous. (a loose carpet doesn’t satisfy it.)
 The condition must be concealed by the D. - not visible or obvious to the P. (latent
defect)
 The condition was known to the D (land owner).
(c) Licensees (who comes on the land usually for social purposes, with owner’s
permission: eg.- social guests, door-to-door sales person, firefighters, police officers)
or persons entering the land for their own business.
i) Affirmative activity: Reasonable prudence under the circumstances
ii) Conditions
: Whether the condition was concealed dangerous natural/artificial
conditions and known to the owner
(two part test of known trap)
1)
duty to notify condition concealed
from them and known to owner
(d) Invitees (business entrants, customers - no matter whether they intend to buy or not, or
visitors for purpose for which the land is held open to the public - airport, shopping
mall, train station, etc.)
i) Affirmative activity: Reasonable prudence under the circumstances
ii) Condition
: Whether the condition was concealed and the owner knows or
should have known the condition. (two part test of knowable
traps)
2)
should know about (Duty to
Inspect upon land owner)
 We finally impose duty of “reasonable inspection” and are back up to reasonably prudent
standard.
One loses invitee status if exceeds the scope of invitation.
<Summary on Duty standards of owners and occupiers of land>
Undiscovered Trespasser
Discovered Trespasser
Licensee
Invitee
Affirmative Activity
No duty
Reasonable Prudence
Reasonable Prudence
Reasonable Prudence
Static Condition
No duty
To inform known manmade death trap
To warn known concealed defect
To warn knowable concealed defect
b) Comments to Landowner/Occupier problems
(1) (on the artificial condition) If they give you a trespasser who is a child, ordinary “reasonably
prudent under the circumstances” standard is applied no matter what the status is.
 The issue will be one of foreseeability: Could the owner foresee that kids will come to his
land w/o permission? (eg.: there is something that kids like such as swimming pond in your
land) Once it is foreseeable, you owe these child trespassers duty of reasonably prudent
person.
[QE] In summary, P must show, in addition to the above mentioned factor,
that there was a dangerous condition which owner is or should be
aware. Finally, the key factor is whether the expense of remedying
the dangerous situation is slight compared with the magnitude of
the risk. If so, D is liable.

Trespasser - Children Injured by Condition Cases
Std?  RPP under the circumstance ... whether likelihood that
children enter property
- likelihood of children entering ... if there is something
appealing to children (i.e.> presence of pond)
IF YES
- Landowner MUST make pre-cautionary effort (Attractive
Nuisance Doctrine)
- NO requirement upon child to establish condition on land
attracted him to enter.
- NO requirement that the child be injured by the
ATTRACTANT (pond) ... if child attracted by the pond is
injured by another cause ... landowner is still liable

NY Distinction
Analysis should be based on Reasonable Prudent Person Standard under
circumstance for ALL eight potential scenarios
(BUT the 8 status could be used to argue the REASONABLENESS of the
landowner)
(2) 2 separate ways D can discharge his duty (either way satisfies the duty)
i) Repair the hazardous condition; or
ii) Give warnings
(3) If P is injured by open and obvious condition, no recovery, no matter what the status is.
 If hazard is obvious, the P should have taken precautions and we will not blame the
landowner
(eg.) People who dive into shallow water will probably lose the case.
[QE] With regard to the negligence of guests on your land, the owner owes
reasonable care of duty.
#
c.
lessor of realty
d.
two ways to satisfy the duty
(1)
correct the condition
(2)
give a warning: note that a warning always satisfy the duty
of care
(3)
if defect (hazard) is open and obvious, entrant will lose
<NY distinction> :Categorical approach is abolished.
1) Just use the reasonableness under the circumstances
2) However, the status of the P is relevant in determining the amount of care. (It affects assessing
reasonableness)
3.
Bar Exam Favorite Issues
(1)
Discharge of Duties
(1)
These duties may be discharged by either
1)
Warning, or
2)
Making dangerous conditions safe
(2)
On the exam, look for: Whether or not
Aadequate warning@ is given
(2)
Very Obvious Dangerous Conditions - No liability
c. Statutory standards of care - Negligence Per Se
[ Introductory Comments ]

If the statute is applicable, the violation of specific duty set out in that statute may replace the
more general common law duty of care, “reasonably prudent person under the circumstances.”

P in a negligence case learns that there is criminal statute or other regulation that D violated (eg.:
stop at red signal, drive less than 40 miles, etc.), P wants to borrow that statute to establish the
standard of care.
5.
- Borrowing Statutory Duty of Care Standards
1.
Situation
1.
Statute providing for Criminal/Regulatory penalty for violation ...
BUT NO civil penalty
(1)
P would like to borrow the statutory standard of care
instead of applying RPP

If the two part test below is met, there is a conclusive presumption of duty and breach of duty.
However, even if D complied with this statute, he may still be found negligent, b/c compliance
with the statute will not necessarily establish due care.
1) General Rule: 2 part test for negligent per se - "class of person, class of risk"
a) The P falls w/in the class of persons the statute is designed to protect.
b) P must show that the accident which occurred is the type of harm (class of risk) that the statute is
designed to protect against.

negligence per se doctrine if breach of the statute.
2.
3.
Plaintiff must fall within protected class (Class of Victim)
Statute must be designed to prevent this kind of harm (Class of
Harm)
... satisfaction of (a) and (b) allows borrowing of statutory
std. of care and upon proving violation of prima facie
elements statutory requirements  D is deemed Negligent
Per Se with NO chance given to defend itself.
(eg.1) P steps into the elevator, but no elevator in the shaft. He falls to death. City ordinance
says that if you work on an elevator, you have to put a barrier in front of it. D didn’t.
 Here, the ordinance is to protect people from falling into empty elevator and
to protect people using elevators. P can use this ordinance to establish D’s
negligence per se.
(eg.2) A girl has a leaky gas pipe. Being ignorant of it, she lights up her joint (marijuana).
her apt. is blown up and fire spreads to P’s apt. There is a statute says that it is illegal
to smoke a joint.
 Here, the risk designed to protect is not against explosion, and people to be
protected are not next door neighbors whose property burned down. Thus, P can’t
use this statute to establish D’s negligence per se.
2) Exceptions: Statutory violation can’t be negligence per se. Ordinary standard applies.
-> statutory compliance is excused. go back to the ordinary prudence standard
a) If compliance makes it more dangerous than violation
(eg.) : D Crossed double yellow line to avoid hitting a child
 ordinary “reasonable person under the circumstances” standard will apply,
though the two tests of class met.
b) If compliance with the statute is impossible under the circumstances
(eg.) D can't stop at red light b/c of heart attack.  Same result as above.
However, note that if D was aware of his bad heart condition, this exception of
impossibility of compliance might not be able to save him ( as a result of applying
“reasonably prudent person” standard.)
iii)
compliance with the statute does not exonerate you per se
<NY distinction> : A violation of a regulation of a local ordinance is treated only as an evidence of
negligence, but never as negligence per se.
2.
Effect of Non-Compliance
1.
This results in sAnegligence per se@
2.
What does this mean? Conclusive presumption of negligent
conduct (breach of duty) on the defendant=s part
3.
What does this not mean? Defendant is liable for negligence 
Wrong (Causation/Damage is required)
4.
Note: Excuse for Violation
(1)
Compliance would be more dangerous
(1)
Hypo: Defendant drives on wrong side of road to avoid
firetruck coming at him head-on
(2)
3.
4.
5.
Compliance would be impossible
(1)
Hypo: Blind pedestrian crosses against light
Effect of Compliance
1.
This will not necessarily establish due care if facts require more
Failure to Meet Two-Prong Test
1.
Back to RPP std.
Exception to Borrowing Statute
1.
Compliance would have been more Dangerous to violation
(1)
i.e.> traffic violation to avoid child ... but causing damage
to on-coming traffic
2.
Compliance would have been impossible under the circumstance
(1)
i.e.> heart attack while driving ... runs red light and injures
P
(1)
RPP is used NOT negligence per se
d. Affirmative Duty to act
1) General rule: No legal duty to act/rescue affirmatively.
2) Exceptions:
a) If there is a relationship between the parties
(1) Family
(2) Common carrier or innkeeper,
(3) Business invitees - owners
3.
Pre-Existing relationship
(1)
Special Relationship Between Parties
(1)
Family members
(2)
Employers/Employees
(2)
(3)
(4)
4.
(3)
Common carriers/Passengers
(4)
Innkeepers/Guests
(5)
O/O/Business invitees
Duty to Control Third Persons
(1)
Right and ability to control
1)
Employers/Employees
2)
Parents/Children
(2)
Know or should know it=s required
Assumption of Duty to Act by Acting
Plaintiff=s Peril Due to Defendant=s Negligence
BUT ...
ONLY TO RESCUE REASONABLY ... NOT TO RISK ONE=S
OWN LIFE AT PERIL
b) If the D is the person who caused the P's peril.
c) Rescuer who volunteers but not successful
#
c.
assumption of duty - one who gratuitously acts is then under a
duty to act like an ordinary, prudent reasonable person and
continue the assistance.
<NY distinction> : Good Samaritan law - health care professionals (licensed doctor or nurse) who
chose to interfere are not liable unless they are in gross negligence.
e. Negligent Infliction of Emotional Distress
1) General rule: No duty to avoid emotional distress of other people.
(eg.) I drive fast, and the bystander got emotional distress. I owe the bystander nothing.
2) Exceptions:
exc: lia if P is close enough that in potential physical injury zone (target zone)
a) Only 2 liberalization of the general rule (majority rule): Cardozo’s view
i) If P has physical impact; or
ii) P demonstrates that P was in the zone of physical danger and P was emotionally hurt
although P was not physically harmed.
 What you need for negligent infliction of emotional distress is a hypo of a near miss.
b) Foreseeability approach or bystander approach (minority rule): Andrew’s view
"bystander distress rule"
if P witnessed physical injury of close family member at time in place.
distinguish between negligent and intentional infliction
 It allows someone who was outside the zone of danger to recover for negligent infliction of
emotional distress if P can demonstrate three kinds of proximity:
i) relational proximity, ii) physical proximity, iii) temporal proximity
c) Distinguish that in intentional infliction of emotional distress, no connotation of physical
proximity. In that context, what is required is outrageous conduct and severe emotional distress.
<NY distinction> : 2 Requirements – zone of danger and immediate member of her family
1) If P was in the zone of danger, P has good claim. (eg.: in auto accident, if P was in the apt. - no
recovery, if P was in the street - recovery)
2) Regarding relatives: aunt is not close relationship.
6.
Negligent Infliction of Emotional Distress
1.
Limited Recovery ... P MUST show
1.
D exposed him to a risk of PHYSICAL INJURY/HARM which
didn=t materialize BUT put P in emotional distress
(1)
Zone of Danger Rule ... near miss concept
(1)
i.e.> sudden drop in altitude in the plane ... due to
pilot=s intoxication
2.
As a result of the risk of physical harm, P had physical
manifestation
(1)
i.e.> nightmare, loss of appetite, displeasure in engaging
future same activity...)
3.
Note
(1)
Contrast Aintentional infliction@ where physical injury is
not required (ASubstantial emotional distress@)
2.
Bystander Right to Recovery (NY Also)
1.
Even if someone is NOT within the Zone of Danger, P can recover
for NIED if witness negligent infliction of injury on a close family
member.
2.
Hypo: Mother sees child struck by negligently driven car on other side of street
and has heart attack. Result? She cannot recover (Majority Rule)
(1)
Modern Trend: Plaintiff can recover if he/she is
(1)
(2)
A close relative, and
Perceive injury
B. BREACH OF DUTY
1. General points
a. P needs to point/provide particular faulty conduct on the part of the D.
b. P may use one of three following theories to help him prove D’s breach.
2. 3 ways of proving breach of duty
a. Violation of Statute and Negligence Per Se.
b. Evidence of usage and custom - always admissible, never conclusive as to issue of negligence.
 Everyone else in similar line of work do it differently than D.
c. Res Ipsa Loquitur : This is designed to save a desperate P
1) Doctrine used by the P who can’t particularized what D did wrong and can’t prove D’s breach.
(eg.) P was hit by a flour barrel while walking down the street. All P knows is that he
was walking and hit by a flour barrel. Here, P can’t meet breach of duty elements.
Res Ipsa Loquitur says that we’ll still let the P go forward with his case if he
proves 2 substitute facts.
2) 2 requirements:
a) If P proves that the event is of the type that does not normally occur in the absence of
negligence/ usually occurs only when someone is negligent (we need expert W here); and
b) P has to prove that the D had exclusive control over the instrumentality of causing the
injury (lay testimony enough)
c) P was not at fault regarding his injury.
3) Consequences
 P is allowed to go to jury. P does not win this lawsuit by proving he has a good res ipsa case.
Jury would decide whether P win or not. It is a ticket to avoid the direct verdict for D.
<NY Distinction> If more than 2 persons who controlled instrumentalities, this theory can’t
be invoked against any individual.
7.
What is a breach?
1.
Negligent conduct ... P=s claim of D=s wrongdoing
1.
How do you determine if there has been a breach? You do so by seeing whether
8.
RES IPSA LOQUITUR
1.
How do you know when res ipsa is at issue?
1.
The fact pattern will indicate that plaintiff does not have enough
hard evidence to prove breach
2.
Hypo: Airplane crashes, killing all passengers. Two subsequent, thorough
or not the defendant has met standard of care
investigations revealed no explanation for the disaster. Airline is sued for
negligence. Res ipsa? Yes
2.
3.
Requirements - The AProbability Inference@ Test
1.
Part One: Inference of Negligence: This usually or NORMALLY
would not happen unless someone was negligent
(1)
reason backwards from outcome based on probability
2.
Part Two: Negligence Attributable to Defendant: Evidence
connects defendant with negligence
(1)
injury causing instrumentality was within exclusive control
of D
3.
Part Three: Plaintiff Not Contributorily Negligent
The ARes Ipsa Results@ Rules
1.
If res ipsa applies, what is not the result? The plaintiff wins 
Wrong
2.
What is the result?
(1)
The plaintiff=s case will merely survive a motion for
directed verdict and will go to the jury with an inference of
negligence
(2)
But, that=s all. The jury will then decide whether to accept
or reject the inference (of negligence)
3.
Is it necessary for defendant to offer evidence on its own behalf to
rebut the inference? No
C. CAUSATION (heavily tested)
P must prove both causes:
i) Cause-in-fact (actual cause) - prior to legal cause, determined logically; and
ii) Proximate cause (legal cause)
4.
Note: You must do actual causation first (before proximate causation). If it
does not exist, the case will be dismissed for that reason
1. Cause-in-fact: P must demonstrate some logical connection


This requires P to establish the relationship b/t the D’s bad behavior and P’s sorry circumstances.
Q is “Did D cause P’s injury?”
a. "But for(or even if)" test. (when you have one D)
 Ask whether but for D's negligence, P would not have been injured. Was the P doomed anyway
w/o D’s bad behavior?
(eg.1) Deep sea chart boat fishing, huge hurricane, no life preserve in the ship. Here, D is
negligent both from reasonable prudence standard or statutory obligation standard  D
argues even w/ life preserver, P would not have saved b/c of big waves.
There is no cause.
(eg.2) Golfer pitches outside and hits the car. He did not shout as he should have done.
But this breach of duty to shout was not a but for cause of P’s injury, b/c P would
not have heard the shout anyway b/c of the distance and would have been hurt
even if the golfer shouted.
1.
ABut for defendant=s negligent conduct, would this injury have
occurred?@
(1)
Hypo: You=re driving down street negligently and strike pedestrian
crossing the street. Actual causation? Yes
(2)
Note One: What happens if you ask the ABut For@ test
question and the response is negative for the plaintiff?
Dismiss the case (No actual causation)
(3)
Hypo: Defendant made left turn without using turn signal and collided
with another car. Fog was extremely dense and one could barely see.
Actual causation? No
cases where but for test does not work - multiple D
b. Multiple Ds, two alternative scenarios
1) Multiple negligent parties / commingled causes (concurrent causes)
a) In case where w/ but for test, each D would escape liability. (but for test is not useful)
 Where 2 or more negligent actors, completely independent of each other, release forces
which later join together and bring about the harm.
(eg.) Two guys negligently set fires burn down P’s house. D1 says even if he had been
careful, no difference b/c of D2’s setting fire.
(1)
Hypo: Two hot-rodders simultaneously negligently roar by
horse causing it to Ago wild,@ ultimately injuring
plaintiff/rider. Either hot-rodder alone would have caused this
result. Causation? Yes
(2)
Hypo: X & Y unrelated ... both go camping and
both cause forest fire ... Z= house is burned down
by the forest fire and sue both X&Y
b) Test is: substantial factor test.
 Was D1’s negligence substantial factor in causing P’s harm? (pollution case)
 If so, every D who has substantial factor will be liable.
2) Multiple negligent parties / unknowable cause
(eg.) In quail hunting, two hunters fire at once & hurt the P. P doesn’t know whose bullet hit him.
a) Test is: shifting the burden of proving causation to Ds.
 If Ds can't exonerate themselves, they will be jointly and severally liable.
(eg.) Both Ds negligently left their gate unlocked and their horses are out on the street.
P runs into one of them and the horse gallops off. P can’t identify whose horse it
was. All he knows is that a big brown horse where it should not have been.
(3)
Hypo (Moe, Larry, Curley Hunting Expedition Example): Two
hunters (Larry & Moe) negligently fire guns in plaintiff=s
(Curley) direction. Plaintiff is hit by pellet, but cannot tell
which gun fired shot. Causation? Shift the burden of proof on
causation to two negligent defendants
2. Legal cause - (proximate cause)
* Limiting manageable contour by arbitrarily cutting off. Linking liability w/ culpability
5.
What is proximate causation? Way for the jury to let a negligent defendant
who actually causes the injury off based on lack of foreseeability
1.
Ask whether liability to D would be FAIR under the circumstances
...
2.
Foreseeability comes in as a YARDSTICK to determine whether it
is FAIR to blame D
a. Basic principle: test of foreseeability
1) D is always liable for a foreseeable result.
2) D is always excused from an unforeseeable harm.
b. Determine whether you are dealing with a direct cause case or intervening cause case.
1) Direct cause case: D acts, injury occurs, nothing happened in between.
a) No intervening 3rd party action between the D's behavior and P's injury
b) Simple foreseeability test.
c) In this case, D almost always liable. Just assume that the proximate cause requirements are
satisfied.
3.
Uninterrupted chain of events between negligent act and injury
(1)
ALWAYS hold D liable in these cases because results are
always foreseeable ... and it is fair to impose liability
2) Indirect cause case: D acts, a/t that 3rd person does something.
a) Only a/t that intervention, the P sustain injury.
b) Test is: whether the intervening cause is foreseeable
 If foreseeable, the original actor (D) is liable for everything that happens to the P.
 If not, D’s liability is cut off. (superseding intervening cause)
c. Intervening Causes
1) 4 intervening causes which are foreseeable as a matter of law. D is liable for everything that
happens to P, i.e., the D will be held fully liable for the results of the intervening cause. (no effect
on D’s liability)
a) Intervening negligent medical treatment
(eg.) D is a negligent driver who hits P. P rushed to the hospital, where a doctor
negligently missets his leg leading to its amputation. The negligent driver is liable
for the amputation also, b/c the intervening negligent treatment by the doctor is
foreseeable as a matter of law.
b) Intervening negligent rescue
(eg.) D breaks P’s 2 legs. Ambulance worker then comes into the scene and negligently
breaks P’s arm. D is liable for damage to P’s arm also, even though the rescuer did
that, b/c the intervening negligent rescue is foreseeable as a matter of law.
1)
good Samaritan rescue efforts further injuring P ... D
liable for ALL of P=s injury b/c negligent rescuer is
foreseeable
c) Intervening reaction forces
(eg.) The D run over the P and broke his arm. Other people escaping (fleeing) in panic
caused further injury to P. D is liable for the whole thing.
d) Intervening subsequent disease or accident
(eg.) P’s legs are broken by D’s negligence and P got a crutches. B/c P is not accustomed
to the crutches. P falls on the apt. complex and broke his arm. D is liable to both
injury.
2) In any other intervening causes, you simply have to go back to a basic forseeability and fairness
analysis. Look the original conduct of the D.
 If the result of that conduct was the thing which you are afraid of in the first place, D is liable.
On the other hand, if the result was different from the original concern, D is not foreseeable
and no legal cause.
 Intervening criminal conduct
[QE] In this situation, it is generally unforeseeable. However,
foreseeable when the original D’s actions increase the risk of the
intervening criminal force.
(eg.1) D runs the red light and hit the pedestrian and leave him in broken legs. Later,
two guys come up and take away his wallet and watch. --- Ask yourself why I
worried about running the red light. Not for the taking away his wallet and
watch. It is not foreseeable. So, D’s liability is cut off.
(eg.2) D, the underground garage’s owner, is negligent to keep the door to the street in
good repair. One night a lady get raped by an assailant on her way to get out to
the upstairs exit. D is liable b/c we worry failing to repair underground garage
being afraid of the kind of thing happened.
(2)
c)
Indirect Cause Case: If the intervening force was an
UNFORESEEABLE intentional tort or crime [e.g.,
conversion (auto theft)], defendant will prevail even though
the result was foreseeable
intervening cause is in other category - independent force
if D's conduct increase the risk that independent force happen, liable
Think what of D's conduct make us criticize.
#
In case criminal acts, intentional torts, act of God, gross neg of 3rd party the intervening risk must be foreseeable to held D lia.
eg)
parking lot attendant leave key in the car, theft, crashed during
driving. foreseeable? - liable
d) we are not expected to judge whether it was foreseeable
question/answer contain "if it is foreseeable"
*
the original negligent actor may not have done any harm - liability anyway if
foreseeability is met.
*
the intervening parties are liable for what they did.
*
if a history of crimes in the neighborhood - more foreseeable.
D. DAMAGES
9.
10.
Property Damage Rule
1.
You take plaintiff=s property as you find it - IF D has otherwise
committed every other element of tort, that D is liable for ALL injury to P
even if surprisingly greater injury in scope
1.
NOT LIMITED TO NEGLIGENCE BUT APPLIES TO ALL TORTS
2.
The Egg-Shell Thin-Skulled Plaintiff
(1)
This is not an unforeseeable case
(2)
It is only necessary that one be able to foresee an injury,
not the extent of injury
Note
1.
There is duty to mitigate
2.
Collateral Source Rule: Damages are not reduced because of payments
from other sources, e.g., health insurance

NY Distinction - Collateral Source Rule
NY does NOT ignore first party insurance ... BUT damages awarded to P are
reduced by P=s recovery from his/her own insurance.
1. "Eggshell scull doctrine"
[QE] Eggshell scull doctrine refers to the physical or mental condition of the
V at the time of injury.
a. Once the other elements are satisfied, D is liable to the full extent of damages suffered, even if it is
unpredictable/unforeseeable extent or severity.
unforeseeable extent or severity of harm is irrelevant.
 You take your P as you find him. You don’t have to foresee the full extent of the injury.
(eg.) In cocktail party, you cut someone with a knife, who happens to be a hemophiliac.
Though you don’t know that, you have to pay the full extent of damages.
[QE] 1. There will be punitive damage, if D is reckless, malicious or willful
and wanton.
2. Avoidable consequences rule: P has a duty to take reasonable step to mitigate
damages. However, in actions against 3rd party, a parent’s negligence is not
imputed to the child.
2.
Punitive - if the D's conduct is "wanton and willful".
3.
Attorneys' fees, interest. - not recoverable
4.
The P has a duty to mitigate.
5.
collateral source rule
Generally, damages are not reduced by benefits from other sources.
Growing number of States have made exceptions.
#
6.
NY:
also substantially modified. only some benefits (life insurance, social security,
etc) are not reduced.
NY
pain & suffering damages - more than $ 250K can't be paid in a lump sum i.e.
paid over a period of time as annuity.
E. AFFIRMATIVE DEFENSES
3 Defenses: i) contributory negligence; ii) assumption of risk; iii) comparative negligence
1. Contributory Negligence
a. Minority rule (but traditional C/L defense)
 Most court has rejected, but used in MBE: if Q says, "in the jurisdiction that follows traditional
common law defense," you should use this defense.
 P’s negligence that contributes to her injuries.
b. Definition
 Failure of P to exercise a relevant degree of care (reasonable prudence, statutory, child care,
etc., as is relevant) for his safety
c. Consequence
 Contributory negligence absolutely bars the P’s right to recovery.
d. Exception: last clear chance
 Even if P was negligent, D with the last clear chance to avoid the accident is liable for
negligence.
#
e.
Imputed contributory negligence
only P is vicariously liable for neg conduct of other person (imputed b/t
master/servant, partners, joint-venturers; not b/t husbands and wives, parent and
child and automobile owner and driver basically.)
f.
It is no defense to intentional torts.
2. Assumption of Risk
a. General
1) P may be denied recovery if he assumed the risk of any damage caused by D’s act.
a.
no defense to intentional torts, defense to neg and strict liability
2) P must have i) known of the particular risk; and ii) Voluntarily proceeded in the face of the risk.
3) Consequence: Absolute bar to the recovery
4) There are two species: Express and Implied assumption of risk.
 However, express assumption of risk is rarely tested.
matter of K interpretation & public policy
many states have statute to invalidate it for necessary service from public
policy
NY
statute prohibit certain group of persons from using K to deny lia
(lessors, bldg contractor, amusement park)
b. Implied assumption of risk
* Only if Q says, "in the jurisdiction that follows traditional common law defense," you should
use this defense.
1) Negligence equivalent to negligent consent as a defense.
 P behaves in a certain way, and his act causes D to conclude that P is taking a chance.
3.
Only minority rule
1.
Negligence equivalent to consent
(1)
Doofus runs across street trying to beat negligently driven
(2)
speeding car. He is struck and injured
Will Doofus recover?
(1)
Under contributory negligence  Doofus loses
(2)
Under implied assumption of risk  Doofus loses
2) D must show two elements
i)
P knew and appreciated the risk (P knew what she was getting into) [Knowledge]
ii) P encountered the risk voluntarily. [Voluntariness]
not voluntary when
acting in an emergency;
no alternative;
in rescue.
NY:
implied assumption of risk has been abolished as a bar to recovery by the
comparative neg statute.
(3)
i.e.> agreeing to travel in car with a drunk driver
where P knows the driver is stinking drunk.
 D must show that P had an alternative not to encounter the risk
(eg.1) To get on the car which is driven by obviously intoxicated friend. However,
if the driver concealed his being intoxicated, you have no knowledge.
(eg.2) At the end of work, you have to leave official building. Staying in the office
is not an alternative.
 If P acted in emergency, his act is not voluntary.
(eg.1) P’s effort to save the kid could not be argued to be voluntary assumption of
risk b/c he had an alternative course of action of not doing anything. Why
not? B/c P’s action in emergency is not thought to be voluntary.
(eg.2) If you are bleeding so much and there is no car except your intoxicated
friend’s, not voluntary.
(eg.3) If someone has a gun and forces you to get on the car, not voluntary.
2.
- P is NOT liable in these cases ....
(1)
No Other Viable Alternative
(1)
Defendant negligently created hole in front of only exit out of
building. Plaintiff, knowing of hole, tried to walk around it,
was unsuccessful and injured. Liability? Yes
(2)
Emergency (Plaintiff=s or Another=s)
(1)
child injured ... mother stops car ... finds out driver
is obviously drunk ... Mother still asks driver to
drive child to hospital ... further injury to child
4.
when car involved in accident on its way to hospital
1)
NO assumption of risk by mother
(3)
Statutory Standards
(1)
When a statute applies and is enacted to protect a
class, members of that class will not be deemed to
have assumed any risk
Bar Exam Trick
1.
To recognize the fact pattern where both contributory negligence
and implied assumption of risk are available
2.
It is where the plaintiff
(1)
Unreasonably
(2)
Voluntarily takes on a
(3)
Known risk
3) Failure to wear seat belts
a) In MBE, failure to wear a seat belt is neither assumption of risk nor contributory negligence.
(just ignore the failure)
b) NY distinction: D in motor vehicle case may use the P’s failure to use seat belt to mitigate the
damage (not a matter of liability).
seat belt defense - failure to wear seat belt
MS:
not assumption nor contributory neg. just disregard the failure
NY: mitigation of damages, not a matter of lia.
3. Comparative Negligence
5.
Analysis Steps
1.
Is P guilty of any fault?
(1)
IF Yes ...
2.
Jury assigns degree of fault (%) regarding P=s portion of
negligence
3.
Damages are adjusted based on P=s degree of fault

NY Distinction - Pure Comparative Negligence
Damage calculation go strictly be the degree of fault (%) assigned by the jury
a. Defined in the same way as contributory negligence, failure of P to exercise relevant degree of care
for his own safety.
b. Consequence of P's fault is different = not complete bar, but just reduces the recovery
c. Pure v. Modified (* If no indication in exam, presume as modified)
1) Pure comparative negligence: P always recovers some amount of money, no matter how great P’s
negligence. (If P has 90% negligence, P will have 10% damage recovery.)
2) Modified comparative negligence: P recovers reduced amount up to the point P is 50%
responsible for his injury. If P is more than 50% responsible for his injury, he gets nothing.
- when P's culpability
 50% ...proportional recovery
> 50% ...no recovery
NY rule: pure comparative negligence, unless P's fault is a crime.
* if no indication in exam, presume as modified
c.
effect on other doctrines
i)
#
iii)
11.
implied assumption of risk
no longer independent defense.. merged into P's culpability
ii)
no last clear chance
applicable to wanton and willful conduct, but not intentional
Distinctions Checklist: Contributory Negligence v. Comparative Negligence
1.
1st: Effect of Contributory Negligence
1.
Contributory Negligence State: Any contributory negligence
completely bars recovery
2.
Comparative Negligence State: Contributory negligence lowers the
amount of recovery unless plaintiff has been more negligent than
the other party. If so, there is no recovery (However, even the more
negligent party can recover in a pure comparative negligence state)
2.
2nd: Implied Assumption of Risk
1.
Contributory Negligence State: Yes
2.
Comparative Negligence State: No
3.
3rd: Last Clear Chance Doctrine
1.
The Doctrine: Contributorily negligent plaintiff successfully
contends that after his/her negligence, defendant still had the last
clear chance to avoid the accident and, thus, contributory
negligence should be disregarded as defense
2.
Contributory Negligence State: Yes
3.
Comparative Negligence State: No
4.
Favorite Exam Red-Herring
(1)
AThe Last Clear Chance Doctrine is a good defense@ 
Wrong (This is plaintiff=s argument, not a defense)
4.
4th: Defendant=s Tortious Conduct was AReckless@
1.
Contributory Negligence State: Contributory negligence will not be
a good defense
2.
Comparative Negligence State: Contributory negligence will be
offset against recovery
IV. STRICT LIABILITY
4 S/L cause of actions: Domesticated animals, Wild animals, Ultrahazardous activities, Products.
12.
13.
14.
7.
Same as for negligence with one exception
We replace the standard of care with absolute duty to make safe
We replace the standard of care with absolute duty to make safe
Defenses
1.
Knowing Contributory Negligence
1.
Complete defense
2.
Result: Plaintiff recovers nothing
2.
Unknowing Contributory Negligence
1.
No defense
2.
Result: Plaintiff recovers everything
3.
Modern Trend
1.
Comparative negligence rules apply
2.
Result: Plaintiff recovers what they would recover under a comparative
negligence
A. STRICT LIABILITY FOR ANIMALS
) injuries caused by animals
1. Domesticated Animals
a. No strict liability for injury caused by your domestic animal (P must prove negligence), unless you
know of their vicious propensity, or know that they would do damage.
 You are strictly liable if you know your dog has previously bitten someone.
(1)
(2)
Knowledge = previous bites by dog
ONE FREE BITE RULE ... but after that the
owner is on notice.
1)
Liability for domestic pets only at second
instance (First free bite)
1)
Hypo: Fido, your pet poodle, bites
someone. Strict liability? No
2. Wild Animals
a. Always strict liability on owner no matter what the circumstances
(2)
(3)
S.L. for any injury caused by wild animals that one keeps
Strict liability for those with inherent dangerous
propensities from the outset (result not changed if
Atamed@)
(1)
(2)
Owner=s level of care is IRRELEVENT
Hypo: Fido, your pet crocodile, bites someone. Strict liability?
Yes
 A lion escaped from circus and goes into an house, where he causes a female resident heart
attack. Lion is a wild animal, so its owner is strictly liable.
always strict lia; a person who keeps a wild animal is strictly lia if
that animal caused an injury and if that injury is such that is
typically anticipated (eg, lion escaped from circus)
b.
harm must be the harm predicted (eg. bite, scare...)
#
c.
persons protected
landowner's strict lia - only to licensee and invitees, but not to trespassers
(lia w/ neg)
exc>
#
2)
public duty to keep the animals (public zoo keeper) - lia only when
neg
trespassing animals
The owner is strictly lia for the damages by the trespass of his animals as long
as it was reasonably foreseeable.
B. ULTRAHAZARDOUS ACTIVITIES
1. If ultrahazardous activity, then strict liability
a. But only if the consequence is the kind of thing we worried about in the first place.
 Chemical blasting. P is a mink rancher. (and mink is very sensitive) Blasting makes minks
nervous and they eat their children. P sues the blasting company.
 No recovery b/c it is not w/in the risk that we originally worried about.
[QE] However, note that the owner is strictly liable only for injuries to
others caused by the dangerous characteristics of the animal.
2. What is an ultrahazardous activity? 3 part test
a. Activity that imposes severe risk of harm.
b. Activity that can’t be made completely safe.
(4)
IRREDUCEABLE risk
c. Activity that is uncommon in the community. You will not encounter it in every street corner.
(eg.) Blasting, anything involving highly toxic chemicals, anything involving radioactive
materials, etc.
[QE] Flying ordinary aircraft: not UH, but test flight of a new aircraft is
an UH.

Usually MBE gives you a fact pattern where they emphasize how much precaution is taken by the
D. Don’t get sucked into them. If the activity is ultrahazardous, then you are strictly liable no
matter how much the precaution was and unbeknownst to the D.
(e.g.: blasting, chemicals, toxic, radioactive).
*
3.
4.
precautions don't exonerate. The person will be strictly lia for any harm
resulting from the activities. (in exam, ultra hazardous character is
mentioned briefly, safety measures explained lengthy - irrelevant)
2.
S.L. for engaging in ultrahazardous activity
(1)
REGARDLESS of the level of pre-cautionary efforts taken
by P
(1)
Pre-Cautions  totally IRRELEVANT

DO NOT BE CONFUSED BY P=s PRE-CAUTIONARY EFFORTS
WHILE ENGAGING IN ULTRA-HAZARDOUS ACTIVITY
Classic Examples of Ultrahazardous Activity
1.
Blasting or Explosives
(1)
TNT, Dynamite, C-4
2.
Highly toxic chemicals
3.
Radiation/Nuclear Energy
Favorite Red-Herring: Any answer which refers to D=s conduct  Wrong
(Strict liability has nothing to do with D=s conduct - Policy based)
C. STRICT LIABILITY FOR PRODUCTS (Heavily Tested)

In the exam, if the fact pattern says product caused injury, first check what theory the P is
asserting his claim.

If what P is pursuing is negligence theory, use negligence theory. Only if Q says the theory
used by P is strict liability, you may use the following structure of analysis.
In the exam, first check what theory is the P asserting in the question.
intentional -> intentional tort
negligence -> negligence tort
warranty -> K theory
implied warranty, express warranty
strict liability
-> in this case four prima facie elements required.
#
b.
#
in any case, no privity limitation
i)
manufacturing defect
differs from all other products of same model
ii)
design defect
all products of a line are the same, but have dangerous
propensities
iii)
failure to warn
danger must not be apparent to users
-
could have made safer w/o serious impact on the product's price
or utility
-
scientifically unknowable risks at the time of marketing - not liable
-
unavoidably unsafe products - not liable
defect
ways to prove defect
<Bright line of NY> Cause of action for SL in tort
P must show either i) the manufacturer produced a product that was dangerous beyond
the expectation of the ordinary consumers; or ii) a safer alternative or modification
was economically feasible.
1. 4 Prima Facie elements for strict liability for products
a. Commercial supplier: D must be a merchant in type of goods in question
1) No SL claim to a casual seller. (I sell my used car. I can’t be sued under product liability)
2) No requirement of face-to-face each other.
 You can sue not only retailer but also higher level of distributor and producer
3) Commercial lessor is treated as merchant (rent-a-car company)
[QE] 4) The product must reach the consumer w/o substantial change in the
condition in which it is supplied.
5.
D MUST be a MERCHANT
1.
Routine business of selling product
(1)
casual seller is NOT a merchant and CANNOT be sued
under S.L. std.
2.
Service business are NOT merchants of goods that are incidentally
provided
(1)
3.
CANNOT sue restaurant for injury from broken chair under
S.L. std. ...
(1)
although could base a claim on negligence
NO requirement that P & D have dealt with each other
(1)
NO rule for direct dealing, privity
b. Defective product: P must show product is defective: 2 kinds of defects
(Least commonly tested element, and you are usually told that the product is defective)
1) Manufacturing defect
a) The product that injured the P differs from all other products of same company in a way that
makes it more dangerous
(eg.) Red toxic material in a Coca-Cola
b) Note that no requirement of manufacturer’s carelessness (no matter how much the precaution
was)
2) Design defect
a) Every product has the same problem but the manufacturer could have made it safer cheaply
w/o undermining its utility.
b) Product is defective if there is an alternative way to configure it. Here, D simply chose not to
do so.
 There is alternative way to configure it if:
i) It is inexpensive to adopt;
ii) It would enhance its safety;
iii) It would not impair its efficiency
c) You defectively designed product not only b/c of its physical configuration but also b/c it lacks
information
 Once you have a design defect, you must warn about them b/c it has residual risk.
#
allergic reaction need warning
#
NY:
1.
Product must be DEFECTIVE
Manufacture Defect
6.
subsequent modification is admissible for manufacturing
defect, but not for design defect
(1)
2.
3.
4.
IF differ from all others that came off in assembly line
which is more dangerous than consumer expectation
(1)
company quality-control  IRRELEVANT
Design Defect
(1)
IF there is alternative method of manufacture
(1)
alternative design must be safer than current method
(2)
cost effective ... no more expensive than current
method
(3)
practical
1)
NOT undue interference with current
purpose of use.
(2)
Info accompanying product to market (warnings &
instruction) are part of the design
(1)
so inadequate warning = defective design
(3)
Presence of Warning in itself is NOT considered as a
proper design
(1)
i.e.> warning label on children=s pajama made with
inflammable material.
Defect existed when product left D=s hands
(1)
NOT issue in design defect ...
(2)
only apply to manufacturing defect
(1)
manufacturer can assert  it was fine when it left the
factory ... and injury due to intervening cause
1)
BUT presumption against D if logistics of
product made during normal course of
business
P must be a foreseeable user making a foreseeable use
(1)
foreseeable use = broader than INTENDED USE
Intended Use
Of Product
+
Unintended
Use
c. The defect existed when the product left D's hands (It must be shown by the P.)
1) D can sue the one (retailer) who sold the product to you, wholesaler, or manufacturer b/c any
requirement of privity is totally abandoned when P sues for defective product, whether P sues
under strict liability or negligence or any other applicable theory.
2) If the product moved in ordinary chain of distribution, presumption is that defect existed when
product left manufacturer’s hand. So this element is never an issue.
d. P has to be a foreseeable user, making a foreseeable use (not limited to intended use).
1) Privity is not required. User or consumer I/ family, neighbor, bystander, etc. can sue.
(eg.) Your next door neighbor who borrows your chain saw is a foreseeable user.
However, if he uses it to floss his teeth, that is not a foreseeable use.
#
if only economic loss, (not personal or property damage), no recovery
#
#
d.
disclaimers are irrelevant in neg or strict liability case of P
implied warranties
no vertical privity requirement. need not buy directly from D.
but narrow horizontal privity requirement. buyer, family, guest protected
(UCC)
implied warranties
merchantability
fitness for a particular purpose
when seller knows or has reason to know and buyer relies on the
seller's skill and judgement
proof of fault unnecessary
purely economic loss is also recoverable
defense
i)
ii)
iii)
iv)
#
e.
assumption of risk
contributory neg. (other than failure to discover or to guard)
failure to give notice of breach is a defense under UCC
disclaimer - rejected generally, upheld for economic loss
representation theories
i)
express warranty - part of basis of the bargain
privity not required - any consumer, user or bystander
If buyer sues, the warranty must have been part of the basis of
the bargain.
- breach of warranty - fault unnecessary
- damage, defense - same as implied warranty
- disclaimer - effective only if consistent w/ warranty
ii)
misrepresentation of fact
-statement was of a material fact
-seller intended to induce reliance by the buyer
-justifiable reliance (need not be victim's eg. prior purchaser's)
-strict liability, (also arise intentional, or neg.)
-assumption of risk is no defense
2. Affirmative Defenses to Product Liability
a. Basic rule: Behavior equivalent to implied assumption of risk will bar recovery. Any other P’s
fault is irrelevant and not a defense.
1) Classic contributory negligent type of behavior is not a defense to product liability
2) Classic Assumption of Risk behavior is a defense to product liability.
b. Key distinction is b/t oblivious stupidity vs. knowing stupidity.
Oblivious, stupid P is not defense
= unknowing encounter the risk (eg. not reading the instructions, forget, don't
understand) => tendency to make the warning more prominent
if read & didn't follow - assumption
1) If P does not know the risk and acts stupidly or negligently, P can still recover under product
liability theory, b/c contributory negligence is no defense to product liability.
2) If P know of the risk and did it anyway, then defense to product liability.
(eg.) If P buys a mower with 80 page instruction booklet, which he does not read at all, and
defect hurts him, then his stupidity in reading the booklet does not bar his recovery.
However, if he reads all of it, and knowing the risk, but acted anyway, then he is
barred from recovery.
3) Lesson for the manufacturers is that give clear warnings in prominent places, so everyone will
see them in order for the assumption of risk to kick in.
<NY distinction>
 Even if P assumed the risk, NY will not bar recovery in product liability action.
 However, any type of D's fault (contributory negligent or assumption of risk) will mitigate
(reduce) the recovery by the comparative fault theory.
3. 5 Recovery Principles in Product Liability (Exam points)
a. It's difficult to hold a retailer/wholesaler liable for negligence for product related injury b/c we
don't expect them any precautionary behavior on their parts. They just sell the product. However,
under strict liability, it is not so difficult.
we don't expect them extra inspection of products
under strict liability, not difficult
#
retailer labeling another's product as his own is liable for neg of
manufacture
b. Adequate warnings generally insulate the D from strict liability (assumption of risk)
<NY distinction> : Learned Intermediary Doctrine
 In using drug or pharmaceutical devices through doctor, the adequacy of warning is measured by
what kind of information you gave to the intermediary (not to the ultimate users.)
c. If Q says that there is a feasible alternative method of designing the product and gives you facts
associated with (dollar figure) costs, you have a situation where there is design defect. If design
defect, even warnings will not insulate them. D is held liable
(eg.) Inflammable pajama with a warning that cloth is highly flammable. It costs 3 cents
per garment to have them treated with flame retardant. Design defect, SL, no defense.
d. Foreseeable use does not mean and is broader than "intended use"
 Misuse will not bar recovery unless the misuse is unforeseeable
(eg.1) It is foreseeable that a chair can be used to step on to get to the book case, though it
is not intended use.
(eg.2) Flossing teeth with chain saw is not foreseeable use.
(eg.3) Intervening 3rd party may be foreseeable user. (eg. rent a car to a friend.)
Whether driving prudently is irrelevant
e. If the product is provided incidentally to provision of service, no strict liability.
(eg,) Hepatitis tainted blood used during medical treatment.  You should sue for
negligence, should not claim for defective product problem b/c the product was
merely incidental to that service.
eg, hospital - blood tainted with AIDS -> sue for negligence. - not defective product
problem.
#3.
extent of liability
a.
b.
c.
duty is only to foreseeable P.
duty limited to "normally dangerous propensity"
proximate cause
4.
5.
First Requirement
1.
The defect causing the injury must have existed when the product left
THIS defendant=s control
2.
Hypo: You bought a coke at hot dog stand 12 seconds ago. It explodes and
you=re injured. Who can you hold liable?
3.
The Rule: There is an inference that the defect existed when it left any
given defendant=s control if since that time the product moved through
normal channels of distribution
4.
Bar Exam Tip: Pro Plaintiff Bias
Second Requirement (To determine which theory to apply you look to call of the
question)
1.
Negligence Theory
1.
Note: Focus is on defendant=s conduct
2.
Negligent Conduct Possibilities
(1)
Negligent design
(2)
Negligent manufacture
(3)
Negligent warnings
(4)
Negligent inspection
(5)
Note: Res ipsa is available
3.
Who can be a plaintiff? Anyone who is within foreseeable zone of
risk including bystanders
4.
Who can be a defendant (i.e., successfully sued)?
(1)
Manufacturers (almost always)
(2)
Wholesalers (almost never)
(3)
Retailers (almost never)
(4)
Note: One who labels products as own or who assembles
product from component parts made by others, can be liable
for negligence even though they were not personally
negligent
2.
Strict Liability Theory
1.
Note: Focus is not on defendant=s conduct
2.
Strict Liability Test: Unreasonably dangerous condition which
causes injury
3.
Who can be a plaintiff? Anyone who is within foreseeable zone of
risk including bystanders
4.
Who can be a defendant (i.e., successfully sued)?
(1)
Everyone
(2)
Note: Indemnification applies
5.
Defenses in AProducts@ Strict Liability Cases (Pro Plaintiff
Bias)
(1)
AKnowing@ contributory negligence is not a Acomplete@
defense in most states; rather it will only serve to lower the
amount of recovery (This is different than the basic strict
liability rule; in other words, the Amodern trend@ position
applying comparative negligence rules is the Amajority@
6.
7.
rule in these cases)
(2)
AUnknowing@ contributory negligence is still no defense in
most states (This is the same as the basic strict liability
rule). Of course, the modern trend would reduce the award
for this kind of contributory negligence as well
3.
Warranty Liability Theory
1.
Form of strict liability
2.
Privity
Exam Favorites
1.
Warnings: Adequate warnings generally insulate from liability
2.
The Feasible Alternatives Approach
1.
If one could have cured a defect for a minor amount of money
relative to the risk involved, he/she should have done it and a
warning will not save them
2.
Hypo: Highly flammable clothing with warning sewn into garment.
For pennies per garment it could have been made almost
flameproof
3.
Product Use Incidental to Performance of Services
1.
Strict liability theories are not applicable
2.
Hypo: During course of medical operation, defective blood is
administered (i.e., negligent inspection)
3.
But remember
(1)
Strict liability theories are not applicable
(2)
But other torts are still applicable
Defenses
1.
Rule
1.

Behavior equivalent to assumption of risk is a BAR to recovery
(1)
BUT
(1)
any other form of P=s carelessness is
IRRELEVANT
NY Distinction - Pure Comparative State
Any form of P=s stupidity will reduce P=s recovery BUT will NOT be an
ABSOLUTE BAR
V. NUISANCE
1. Substantial and unreasonable interference with the use or enjoyment of your land = private
nuisance
a. Substantial interference: offensive, inconvenient, or annoying to average person in the
community
b. Unreasonable interference: injury outweighs the utility of D's conduct
8.
Proper Plaintiffs (Who can bring the suit?)
1.
2.
For Private Nuisance Suits: Plaintiff must have either possession or the right to
immediate possession
For Public Nuisance Suits: Private person may recover only if he/she has suffered
unique damage not suffered by public
2. Nuisance usually involves 2 adjacent landowners who use their lands wildly inconsistent uses.
(eg.) French restaurant next to manure farm. Sanatorium for people suffering from nervous
disorder and heavy metal band recording studio.
3. Rule of balancing the interest: Reasonableness
 Reasonableness and balance are to be picked as the answer, not prior tempore potior iure (i.e. P
loses because came second - always wrong answer)
4. Public nuisance
 Unreasonably interferes with the health, safety or property rights of the community
 Recovery only when P suffered unique damage different from the harm to the community as a
whole.
4.
remedies
damages
injunctive relief
abatement by self-help
#5.
defense
legislative authority - not conclusive
conduct of others - no one is lia for all the damages caused by other concurrent
acts
contributory negligence - no defense
voluntarily moved to adjacent land - no defense
9.
10.
The Standard
1.
2.
The conduct must be objectionable to an average person in the community
In short, it=s an objective standard
1.
Liability for Nuisance rests ONLY for UNREASONABLE interference
3.
Hypo: Plaintiff=s next-door neighbor plants roses, which plaintiff is allergic to. Nuisance? No
(Subjective)
Exam Favorites
1.
2.
Nuisance involves the balancing of competing interests
Favorite Red-Herring: APlaintiff cannot come to the nuisance and maintain the
lawsuit@  Wrong (Plaintiff does not have to be there first to maintain a lawsuit)
VI. GENERAL CONSIDERATIONS (For All Torts)
A. DOCTRINE OF VICARIOUS LIABILITY



When you hold someone liable for another person’s tort b/c there is a relationship.
In vicarious liability cases we have a completely passive tort feasor. One person commits a tort
against a P and P will sue the completely passive party for another’s tort.
Vicarious liability is possible only when there is relationship b/t active and passive tort feasor.
1. Employer-Employee Relationship (Respondeat Superior)
[This rule applies to partnership and joint venture as well.]
a. General rule: Employer is generally liable for torts of the employee, provided that tort was
committed w/in the scope of the employment.
(1)
Employer will NOT be liable for any torts committed by an
employee IF;
(1)
major departure (frolic) from employee=s duty and
scope of employment
(2)
Minor detours will still subject employee to
liability.
b. 2 typical cases where the employee’s action is not w/in the scope of the employment.
1) Frolic. (cf.: Detour is w/in the scope of employment)
2) Intentional tort of the employee
a) General rule: Employer has no liability
(eg.1) Baseball pitcher gets mad an obnoxious spectator and pitches a hard ball at his face.
 The owner of the baseball team is not vicariously liable for the pitcher’s battery.
(eg.2) A delivery man of a florist hit a girl and raped her.  The florist is not liable.
b) Exceptions:
i)
If physical force is authorized in the employment, or is a part of job. (Night club bouncer,
private security guard)
i)
force is a part of the job description: nightclub bouncers (battery
foreseeable)
ii) If job is one which generates friction. (Debt collector)
iii) If servant is furthering business of master. Intentional tort that directly serves employer’s
interest. (Employee truck driver intentionally drives away the truck w/o paying the gas
station. Conversion serving the employer’s interests.)
trucker steals gas (conversion)
[QE] Employer may be liable for its own negligent selection if it has some
reason to be on notice of the likeliness of harm’s occur.
2. Employer-Independent contractor
a. General rule: Employer is not liable
b. Exception:
1) Engaged in inherently dangerous activity.
2) The principal has the duty that is nondelegable on public policy grounds.
(eg.) Land occupier’s duty to keep her land safe for business invitees.

Also, vicarious liability if there is principal’s negligence in selecting an incompetent independent
contractor.
general rule: no vicarious liability
#
exe>
i)
the activity is ultrahazardous,
ii)
the duty is non-delegable for public safety considerations,
e.g., building a fence on an excavation site.
The employer may be liable for his own negligence in selection.
3. Automobile Owner for Driver
a. General rule: No vicarious liability. In some states, courts employ theories other than vicarious
liability to hold an automobile owner liable.
(2)
But automobile owners are directly liable for
(1)
their own negligence (in giving permission): Direct
negligence
(2)
were the driver was acting to satisfy owner=s need
1)
i.e.> driver running auto-owner=s errands.
b. If the driver is an agent or errand of the owner, it is not owner-driver relationship but general
master-servant relationship.
c. 2 minority rules
1) Family car doctrine: Owner will be liable for torts of family members who were driving with the
owner’s express or implied permission.
Permissive use doctrine: Owner is liable for tort of anyone who drives owner’s car w/ his permission. ;
rental car com is vicariously lia for driver's tort
2)
<NY distinction>
 NY has Permissive Use Statute.
 NY has presumption of giving permission to use. So even if the car is stolen, you has the burden
of proof.
d. Don’t be confused vicarious liability and negligent entrustment.
(eg.) Your friend is blotto and wants to borrow your car keys. You gave it to him and he runs
a pedestrian in his drunken stupor. It is not a vicarious liability problem but a direct
negligence question b/c it is negligent to give keys to a drunken driver. Compare with
the vicarious liability situation that the D (owner) is an absolutely passive tort feasor
whose only fault is having a relationship with the active tort feasor.
NY -
presumption of permission. D should prove no permission. Even thief
was presumed to be permitted.
not applicable for intentional tort
permitted person need not operate himself, use is enough
NB -
if you hand the keys of a car to a drunk - neg. not vicarious liability i.e.
negligent entrustment.
(3)
2.
Automobile Owners
(1)
When the doctrines apply, automobile owners are
both directly negligent and vicariously negligent
(2)
In these cases, direct negligence prevails over
vicarious negligence
Example
1.
Dave home by himself ... Joe, a friend, absolutely drunk shows up
at Dave=s house and ask to borrow his car ... Dave lends Joe car ...
Joe runs over P
(1)
P v. Joe
(2)
P v. Dave
2.
Dave=s liability?
(1)

Ans> MBE: Liable
(1)
must ask first Dave=s Negligence before beginning
vicarious liability
ALWAYS go for the PRIMARY NEGLIGENCE against D before asking whether
vicarious liability.



negligent supervision
negligent hiring
negligent entrustment
4. Parent-Children
a. General rule: Parent is not vicariously liable for their children’s tort (from the children’s ordinary
life activities).
#
parent liable for own neg.
[QE] Parent may be held liable for parent’s own negligence in allowing a
child to do sth. (e.g.: use a dangerous object w/o proper instruction)
<NY distinction> : Parent’s vicarious liability for the intentional tort of their children up to
$2500/children over age of 10.
5)
tavern owner and customers
C/L rule: no vicarious liability
Dram shop act: make them liable for their own neg (not vicarious liability)
NY; liable if unlawfully supplies alcohol - serve a minor (under 21) or a visibly intoxicated
adult
5. <NY distinction> Tavern owner and customer of tavern (Dram Shop Law)
a. If tavern owner unlawfully provided alcohol, he is also liable for tort of customers of the tavern.
 Unlawfully provided alcohol when the tavern owner serves already intoxicated person or a
minor.

Note that this is not really a case of vicarious liability, b/c it seems to be a case where
liability is imposed on ordinary negligence principles, that there is a foreseeable risk of
serving a minor or obviously intoxicated adult.
B. JOINT TORT FEASORS (Contribution and Indemnification)

P sues multiple Ds and P executed the judgment against only one of the multiple D. The D who
paid the P wants to get money back from the other Ds in the case.
joint and several liability
a.
Where two or more tortious acts combine to proximately cause an
indivisible injury to P, each tortfeasor is jointly and severally liable for that
injury.
b.
Where Ds acted in concert, they are jointly and severally liable for the
entire injury even if it is devisable.
c.
jointly and severally liable
each D is liable to P for the entire damage incurred.
NY:
for non-economic loss, (eg. pain and suffering, mental anguish, loss of
consortium), not strict joint lia, except auto accident case.
if D. liable 50% or less
liable to P only that %
if more than 50%
liable to P entire amount


There are two alternatives, which are never applied together. (mutually exclusive)
1. Contribution
a. Available to D if all the Ds have roughly equal culpability.
b. The paying D may recover equal fraction from each of the other Ds.
#
traditional - equal share
movement for comparative contribution - apportioned according to
relative culpability
2. Indemnification
a. If the Ds are of wildly disproportionate culpability and the less guilty D paid the P, that D is
entitled to indemnification, which means 100% reimbursement. He gets the full pay-back.
(eg.1) D2 was vicariously liable and paid the P. He is entitled to indemnification.
(eg.2) Two insurance companies yelling at each other.
< NY distinction > : Comparative contribution
a. NY has neither of above two.
b. NY’s system is that we put percentage numbers to each D’s fault and adjust the payment that way.
Contribution is in proportion to the relative fault of the various defendants.
(eg.) Tom (70%), Dick (20%), Harry (10%). P got 100% ($1000) from Harry.  Harry
can get $700 from Tom and $200 from Dick.

#3.
But note that joint and several liability will give P 100% from any of three.
NY
indemnity based on differences in degree of fault has be replaced by
comparative contribution - ct or jury will assign percentage numbers.
However, this does not ban indemnification. Indemnification is still alive
in case vicarious liability, etc.
survival and wrongful death
1)
survival of tort actions
In most states, C/A survives death of either tortfeasor or the victim. (survival act
changing C/L)
invasion into intangible personal interest (eg. defamation) - expire upon V's
death.
NY: C/A survives w/o exception
2)
wrongful death
a.
cause of action by statute
b.
spouse or next of kin may bring the action for pecuniary injury resulting to them.
(eg. loss of support, loss of consortium, etc. not decedent's pain and suffering)
c.
defense against deceased could be used.
defense against beneficiary do not bar the action, but may reduce.
NY
The representative of the estate may maintain an action for the pecuniary
loss by the beneficiaries. No recovery for grief, loss of consortium.
Distribution- not to spouse or parent who neglected or abandon the
deceased
defense against beneficiary - no defense
statute of limitation..2 years from death
#4.
tortious interferences with family relationships
1)
husband - wife
a.
intentional interference
-
loss of consortium and service because of criminal conversation (adultery) or
alienation of affections
-
abolished in many states, including NY
b.
negligent interference
loss of consortium and service because of injuries from D's neg
2)
3.
parent-child
a.
parents may recover for the loss of child's service when child is injured by D, neg
or intentional
b.
child has no action against injuries of his parent
PARTIES-MULTIPLE DEFENDANT ISSUES
1.
Releases:
1.
A release does not release other tortfeasors unless it expressly does
so
2.
Joint and Several Liability
1.
The Rule: Where multiple acts cause indivisible injury, each
defendant will be potentially liable for the entire judgment amount
2.
Exam Tip: On the exam, assume that every defendant is jointly
and severally liable (i.e., liable for entire judgment)
3.
Reconciliation of Rights between D=s
1.
three defendants ... P win joint + several liability to Ds ... D1 pays
in full ... rights of D1?
(1)
IF all of D were active tortfeasors w/ equal culpability
(1)
THEN D1 has remedy of CONTRIBUTION (1/m)
recovery allowed
(2)
IF significant disparity in fault and D1 is the less guilty
party
(1)
THEN, D1 has right of INDEMNITY (100% refund
to D1) against Co-Ds
4.
Contribution and Indemnification
1.
When is this used? It is used where a defendant, because of joint
2.
3.
4.

4.
NY Distinction - Multiple D case
Degree of fault assigned to each D
D1 recovery limited strictly by the % of fault (comparative contribution)
SURVIVAL AND WRONGFUL DEATH
1.
These are derivative recoveries.
1.
Must base claim on any one of intentional tort, negligence, or strict
liability
2.
This means you will stand in no better position than decedent
would have stood in had he/she lived
3.
D may use any affirmative defenses regarding the cause of action
2.
5.
and several liability, has paid more than his/her fair share of the
judgment
Contribution
(1)
Where defendants are more or less equally responsible, they
will share the judgment amount equally
(2)
Notes
(1)
Defendant from whom contribution is sought must
also be liable (for example, does not have
independent defense such as intra-family tort
immunity)
(2)
Not applicable to intentional torts
Indemnification
(1)
Can get ALL back from other defendant(s)
(2)
Indemnification grounds
(1)
The other defendant is a lot more responsible
(2)
Vicarious liability (you can get it back from the
actual tortfeasor)
(3)
Strict liability in product cases
(4)
By contract
Comparative Contribution
(1)
Defendant will split up judgment according to relative fault
(2)
Hypo: Adam is 25% responsible for injury, Buster 75%
responsible. Plaintiff received $100,000 judgment. How do
we split this up between them? 25%/75%
(3)
Hypo: Same hypo as above. How much do Adam and
Buster each owe the plaintiff? Each owes 100% to P (Joint
and several liability)
Hypo: At trial in wrongful death action, it comes out that decedent=s contributory
negligence played a role in her death. What result?
1.
Contributory negligence: No recovery
2.
Comparative negligence: Lower the amount of recovery
TORT IMMUNITIES
1.
Intra-Family Immunity
1.
Rejected by majority
(1)
family members can sue each other
on Exam: answer that says Acannot sue because family
immunity@  WRONG answer
Charitable Immunity
1.
Rejected by majority
(1)
charities are subject to tort liability
Governmental Immunity
1.
Governmental Functions v. Proprietary Functions
(1)
Immunity available for governmental functions
(2)
Immunity is not available for proprietary functions
(3)
To determine if function is proprietary, ask: Private
business? If yes, it is a proprietary function
2.
Hypo: City parking lot. Governmental or proprietary function? Proprietary
(2)
2.
3.
function  No governmental immunity
6.
WORKERS COMPENSATION
1.
Meaning
Tort, Professor Schechter
Made by Kyu S. Chung
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1.
2.
3.
4.

Insurance scheme in which injured employees recover from
insurance system BUT, automatically is BARRED from
suing the employer
Limited Recovery
1.
NO Pain & Suffering
2.
NO Punitive Damages
3.
ONLY
(1)
2/3 of regular salary (wages)
(2)
100% recovery for medical expenses
Excluded Parties
1.
Teachers, and other non-manual sales for non-profit
organizations
2.
Domestic or household servants
3.
Clergy
Covered Injuries
1.
Any injury arising from employment EXCEPT;
(1)
voluntary intoxication
(2)
intentional self infliction of injury
(3)
voluntary athletic activity
ANY injury UNRELATED to employment  is considered outside
the scope of employment and NOT within worker=s comp.
(Example of AHorse Playing@ employee)
C. TORT IMMUNITIES
1. Intra-Family tort Immunities and Charitable Immunity has been abolished virtually
everywhere.
2. Government Immunity
a. When gov’t acts in gov’t capacity (functions that could only be performed adequately by
gov’t), it is immune from tort liability. (police, firefighters, etc.)
 Therefore, if police acts negligently, it can’t be sued.
b. When gov’t acts in proprietary capacity (like a business, function that might as well have
been provided by private corporation), gov’t is liable under the tort in the same way as
others. (county’s swimming pool)
< NY distinction > : Employers immunity from suit when employees are injured.
-1-
Tort, Professor Schechter
Made by Kyu S. Chung
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 Most employees are covered by workman’s compensation, which acts as employee’s
exclusive remedy.
 Therefore, you can’t sue the employer in tort.
#
NY
state/municipality
i)
same except
gov. capacity - immune unless a special relationship can
be shown b/t gov. and the person injured
ii)
difficult to distinguish - eg. inconsistent decision on city
subway
#
b.
i)
assault, battery, false imprisonment, false arrest, malicious prosecution,
abuse of process, libel and slander, misrepresentation and deceit,
and interference with contract rights
#
c.
Fed. Gov. waived except
ii)
discretionary acts
iii)
gov. contractors may assert fed. gov. immunity as a
defence in P/L case if spec. is approved and warned the
gov. about danger.
#
State gov., municipalities who have abolished immunity is
same as fed. gov.
immunity of public officers
A public officer carrying out his official duty w/o malic or improper
purpose;
for discretionary acts - immune
for ministerial acts - not immune
3)
Employer's:
not immune, but if your exclusive remedy is workers' compensation ::>
can't sue the employer.
4)
Charitable immunity - abolished
(eg: run-away Salvation Army truck -> red herring).
VII. REMEDIES (This section is especially for NY ESSAY portion)
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Tort, Professor Schechter
Made by Kyu S. Chung
-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
A. DAMAGES (money): Collateral Source Rule
1. General Rule: Damages are not reduced b/c of other sources
< NY distinction > : Judgment would be reduced by other sources (e.g., insurance).
 Also, if damages awarded is greater than $250,000, it can’t be paid out in lump sum.
The purpose is to protect the recipients against fraud.
2. other legal remedy...replevin, ejectment
B. INJUCTION
1. Categories
a. Negative and Mandatory
1) Negative injunction forbids you doing sth.
2) Mandatory injunction requires you to do sth.
b. Preliminary and Permanent
1) Preliminary injunction freezes the status quo during litigation.
2) Permanent injunction provide relief in perpetuity.
2. 4 part test must be satisfied to be entitled to injunction
a. P has to show that he has no adequate remedy at law, that money damages won’t be good
enough to compensate him.
1) Impecunious : If D has no money
2) Immeasurable : If harm is very difficult to measure in economic terms. (eg.: busi secret)
3) Interminable : Tortious conduct is on-going. (Nuisance fact pattern)
b. P can only get injunction for tort that threatens property interests
1) Trespass to land, conversion, nuisance, and all business torts
2) Your interests in your bodily integrity (which includes all other torts)
 P has property interest in his body, his reputation, bodily integrity, so property
interests requirement is satisfied.
c. Injunction has to be enforceable. If not, courts will not give it to you.
-3-
Tort, Professor Schechter
Made by Kyu S. Chung
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1) This is generally not a problem with negative or prohibitive injunctions b/c the court
can get them for contempt.
2) With mandatory or affirmative injunctions, they are very difficult to enforce.
Especially in cases concerning quality, such as enjoining an opera singer to sing.
 The more complex, and takes longer, and more active supervision, the more serious
enforcement problems militating against injunction.
d. Court, in determining whether to issue injunction, in engaged in balancing of the
hardships. Whether benefit to P substantially outweighs the harm which D is going to
suffer.
3. Defenses to Injunctions (Equitable defense)
a. Unclean hands
1) If P has done scummy things concerning the same transaction involved in the litigation,
he is not entitled to injunction.
(eg.) In the injunction claim against patent infringement, D pointed out that P lied in front
of patent officer.  P can’t get an injunction.
b. Laches (prejudicial delay)
1) Equitable equivalent of statute of limitations.
2) You delay so long b/f seeking an injunction that the D experienced some kind of
prejudice.
c. First Amendment interests
1) If injunction would violate the D’s 1st amendment right such as freedom of speech.
b.
to get injunctive relief - 4 part test must be satisfied (for any kind)
#
(in addition to legally recognized right...see below)
i)
P must show that no adequate remedy at law.
P must explain why money won't do it.
The D has no $ (impecunious),
irrecoverable injury
the harm is unmeasurable,
the conduct is ongoing (nuisance fact pattern).
#
no right to damages (tort is only prospective)
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Tort, Professor Schechter
Made by Kyu S. Chung
-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
#
multiplicity of actions e.g. history of prior litigation over the same
matter;
#
interest in land -> any time there is land, equity is likely to come
in!
ii)
only for a tort involving either property interest (economic
interest) or some other "protectable right"
originally injunction was available only for proprietary interest
(trespass to land, business tort such as trademark infringement).
under modern view, some "protectable right" is interpreted broadly
- all torts included, personal, physical, emotional integrity, etc.
Now this requirement is reduced to a formality.
#
NY:not been expressly raised, but cases indicate
*
in exam, if involved right is defamation or right to privacy, first try
to construe the facts so as to find the existence of a property right,
then refer to the liberal trend
iii)
the injunction must be enforceable.
#
Equity courts enforce injunctive decree by holding noncomplying
party in contempt. The punishment imposed for contempt may be
a fine or imprisonment or both. In prohibitory injunction, no
problem.
The problem is with affirmative (mandatory) inj. - prescribing, not
prohibiting conduct. It is generally very hard to enforce personal
performance = ct reluctant to grant inj here.
*
Depending on fact pattern there may be 3 types:
i)
ii)
iii)
act that involves great skill or judgment e.g. sing opera;
series of acts over period of time: don't like it but able to
enforce it;
out of state act:
if doubts about feasibility -> answer probably is yes (b/c
examiners want you to talk about defenses i.e., prima facia case)
But even if no prima facie case, argue both sides to get extra
points.
#
NY
P seeking out-of-state court to grant p. inj. for act to be
performed in foreign state (e.g. NY -> CA)
Depends on jurisdiction where defendant resides! i.e. if
Def resides in NY - no problem, Court may control; if in
-5-
Tort, Professor Schechter
Made by Kyu S. Chung
-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
any other state - no control, enforcement problem, relief
not granted!
vi)
balance of the benefits and the harms.
but in case i) D was willful, or ii) d has proceeded against clear
assertion of rights by P, no balancing of hardship.
#
#
v)
c.
There is no absolute right to equitable relief. (it is discretionary with the
court)
d.
defenses
i)
personal jurisdiction required
unclean hands;
P has done bad things & therefore should not be granted eq.
relief. Bad actions must pertain/relate to activities P is seeking to
injunct.
ii)
laches = equitable equivalent of the statute of limitations.
prejudicial delay, detrimental reliance; now unfair
#
commences to run from the time P has knowledge
#
estoppel rational => may be shorter than statute of limitation
eg: you saw me, didn't say anything at that time. now too late.
But P can still get $.
iii)
1st A
General rule: equity doesn't enjoin defamation
eg. NY Times threatens to publish article - can't stop them - can
sue for defamation after publication!
#
#
iv)
e.
permanent, preliminary, TRO
i)
estoppel
permanent
-after full hearing on the merits
-may be vacated or modified if condition or law is changed
ii)
preliminary - to preserve status quo
additional requirement
-6-
Tort, Professor Schechter
Made by Kyu S. Chung
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(1)
(2)
irreparable injury if not granted
likelihood of prevailing
-hearing for a preliminary injunction (at least notice of it must be
given to D.
-P must post a bond. NY; also (CPLR)
iii) Temporary restraining order (TRO)
-injunction without hearing
-granted only in drastic circumstances
-if granted, the court will set a hearing for grant of a preliminary
injunction for the earliest possible date.
#
f.
tortious act most often encounter in injunction
i)
nuisance
balance of hardships
only against private nuisance
ii)
trespass to land
iii)
waste
an occupier's act harmful to the interest of one entitled to have the
property preserved
(1)
destructive...permanent harm to land -> injunctive granted
(2)
permissive...not taking care of it -> may be granted where
irreparable and legal remedy is inadequate
(3)
ameliorative.. act resulting in an increase in the value of
land but change its character -> generally not granted
exc. when adverse effect on the general public interest.
but only a public entity may prosecute
iv)
conversion or trespass to chattels
v)
defamation...difficult
vi)
invasion of privacy
under common law, no injunction
NY: no cause of action exc. from Civil Rights Law
vii)
abuse of judicial process
wrongfully instituted suit...against litigants
wrongfully obtained judgement... only extrinsic fraud
-7-
Tort, Professor Schechter
Made by Kyu S. Chung
-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
viii)
unfair competition
(1)
trade libel...more likely to enjoin than personal defamation
(2)
inducing breach of contract and/or refusal to deal
generally proper exc. privilege exists (determined in
considering conduct, relationship b/t parties, motives,
social interests)
ix)
#
g.
(3)
use of competitor's trade secret
(4)
trademark/trade name infringement
(5)
copyright infringement - basically fed. jurisdiction
(6)
patent infringement - based on fed.law
(7)
right to imitate
There is no protection against imitation of one's product
except patent.
exc. deception or improper taking
(8)
appropriation of ideas
a limited right to protect ideas not protected by fed. laws.
must be novel, useful and reduced to concrete form
infliction of physical harm
injunctive relief against criminal conduct
- not available, b/c. right to a trial by jury
- remember, most crimes are also torts, and may be enjoined from this
aspect
#
h.
injunctive relief involving political right
- not available, but conduct which is also tort can be enjoined from this
aspect
#
i.
enjoining distribution of obscene materials
-NY: The supreme court may grant the action by district attorney.
<Summary of Defenses in torts>
-8-
Tort, Professor Schechter
Made by Kyu S. Chung
-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
1) Intentional Torts
 Affirmative defenses



Consent (for all intentional torts)
Privilege (Self-def, etc.)
Necessity (only for property)
2) Defamation
 Affirmative defenses



Consent
Truth
Privilege (absolute and qualified)
3) Invasion of right of privacy


Consent
Privilege (for false light and disclosure)
4) Negligence



Contributory negligence
Assumption of Risk
Comparative Negligence
-9-