TORTS

*on MD exam - Q’s not written to draw out MD distinctions

INTENTIONAL TORTS
1) Generally:
a) Extreme or hypersensitivity of a P, is ignored in deciding if P has valid COA.
(always assume dealing w/ typical/normal person in deciding COA)
b) No incapacity defense  (children, mentally ill can commit intentional torts,
drugs/alcohol - hold them liable!)

2) Battery
a) Elements:
i) D must commit a harmful or offensive contact
(1) Generally not tested on harmful/offensive - dealing only w/ person’s of
avg sensitivity (so is it an UNPERMITTED touching)
(a) Classmate taps on shoulder permitted by normal people, not offensive
(b) Library girl studying, that battery claim go to jury - stroking her hair
saying “I really like you” (sexual harassment) guys who can’t keep
hands to themselves, people of ordinary sensitivity wouldn’t permit.
ii) Contact must be w/ the plaintiff’s person
(1) Includes anything person holding/touching (Carrying purse, guy and grabs
object away. Civil suit for battery b/c grabbing purse grab person.
Someone kicked dog you’re walking, against you! Battery like koodies)

3) Assault
a) Def must place plaintiff in apprehension
i) Apprehension here = knowledge of
(1) Watch for “fear” trick. Set up P in an assault, described as “big, strong,
fearless” then little guy will shake stick and say I’m going to hit you. “Big
guy cannot recover for assault b/c hasn’t been placed in apprehension.”
(2) The unloaded gun prob - def threatens an immediate touching, but can’t
really carry it out. If P knows he can’t be touched (ie he knows there are
no bullets), but if he lacks info either way then would have a valid claim,
then he could be touched, reasonable to think that.
b) Apprehension must be of an immediate battery
i) Impermissible production of an unpleasant sensation
ii) Mere words lack immediacy: naked verbal threat NOT actionable as assault.
(1) I’m close to you, but hands in pockets, in 15 sec I’m going to punch you -
not an assault b/c until he does something it’s not immediate  there must
be menacing, threatening conduct
(a) Menacing/threatening conduct - often involves display of weapon, or
shaking fist, or getting up out of chair. Words alone, p loses.
(2) Even when have threatening conduct, accompanying words can
destroy immediacy! (interested in effect the words have on P)

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 (a) Conditional words: “If you weren’t best friend I’d beat crap out of
you” no assault b/c P knows not about to be touched (shaking fist at u)
(b) Menacing conduct at 9, shaking fist, “Just wait at 5pm, I’m going
to…” menacing conduct but words don’t promise immediate action.

4) False Imprisonment
a) D must commit An act of restraint
i) A threat is sufficient (can be necessary act)
(1) Extreme sensitivity is ignored,
ii) Omissions can be an act of restraint if pre-existing obligation on part of def
to help P move about
(1) Ex. someone w/ a disability but cabin crew does nothing - jetway door
wide open. Act of restraint - that’s the failure of them to help him.
iii) Only satisfied if P knows about it or be harmed by it
(1) If P entire oblivious during confinement, can’t recover or suffer an actual
physical consequence.
(a) Locked in room roommate hypo. If just locked door/unlocked for 2 hrs
and asleep and didn’t know, no COA. But if really needed meds to be
administered while asleep - so you missed medicine but never knew,
now you do have a COA.
b) Must result in P confined in a bounded area
i) Doesn’t have to be “marked out” (ie if verbal threat, don’t leave this open
space, bounded area marked out by threat)
ii) P must, though, be locked IN a space. (keeping someone out of a space,
denying admission, not false imprisonment)
(1) WATCH: Set it up so a person trying to gain entry into a public space,
person of color/religious turban - it’s NOT false imprisonment
iii) If an area has a reasonable means of escape that P can reasonably discover
in it not a bounded area and P can’t win claim. (dangerous, disgusting,
humiliating, or hidden  those means of exit do NOT destroy claim)
(1) Ex. Home owner locks him in basement. Is a way out - crawl through a rat
infested sewer pipe. He can recover, b/c not a reasonable means of escape
(a) Locked in a paneled library, locked in, secret staircase - yes b/c even
though nice reasonable means of escape but he won’t find it.

5) Intentional Infliction of Emotional Distress

a) Defendant engages in outrageous conduct ***
i) (b/c it’s intentional it’s the DEF’s intention to do this, sometimes reckless
counts) So only a tort if you seek to achieve that purpose with outrageous
conduct, the forbidden mechanism.
ii) “If it exceeds all bounds of decency tolerated in a civilized society” - formal
def, try to get this in an answer.
(1) Not outrageous = Mere insults are not outrageous. Can be part of a
package of larger conduct that IS outrageous. So instead look for PLUS
FACTORS (hallmarks of outrageousness) 

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 (a) 1) If conduct is continuous or repetitive (the harassing Visa phone call
now EVERY NIGHT, didn’t get your check, boys coming, we’ll
repossess, etc);
(b) 2) defendant is a common carrier or Inn Keeper - at CL they had a
duty of extreme courtesy to their customers, so people tolerable from
others, not acceptable from those employees!
(i) Hotel, desk clerk says can’t check in too ugly
(c) 3) plaintiff is a member of a fragile class of persons - young children
(can’t pick on people young and vulnerable, etc); the elderly (both
situations - it’s not about their reactions, it’s about the person who
did!); Pregnant woman - def has to know she’s pregnant, b/c that’s
what makes you outrageous.
(d) Racial or religious minorities  there have been cases that suggest
that mere words would be enough, it would be outrageous.
(2) Hypo - lawyers, you put lifesized rubber rattlesnake on chair as joke to see
reaction, but he has raging phobia of snakes, fall to floor w/ heartattack
(does not meet typical test - prank, tasteless, none of the hallmarks
present, instead very essence of hypersensitivity) Conduct not outrageous,
P loses, UNLESS DEFENDANT KNEW ahead of time that P had snake
phobia - it’s outrageous to deliberately target someone’s mental
weakspot/emotional (exploit p’s known sensitivities)
b) Plaintiff suffers severe distress
i) It can take any form, doesn’t require medication, go to doc, miss days of
work, doesn’t require observable physical symptoms.
ii) If negate element in facts - “P was mildly annoyed by this behavior and
wanted to teach D a lesson” - mild annoyance is opposite of severe distress.
(slightly annoyed, somewhat put out!)

6) Trespass on Land
a) Def must commit a physical invasion.
i) Can be made out in either of 2 ways  (1) D actually enters P’s property on
foot or vehicle. D need not be aware that he has crossed a property line. (D is
responsible for knowing where prop line is, so intentionally walking enough)
If walking down street and had seizure and fall onto someone’s front lawn,
entered prop but not through intentional act. Horse startles, etc. (2) Throw,
propel, project a tangible object onto land. (watering neighbors shrubs,
skipping stone on their lake).
(1) 2 teenage boys walking down street, 1 gives other a shove, causes him to
fall on to lawn - one who shoved is trespasser b/c he projected a body on
land. Not a physical invasion to have an intangible force, shining light
on your neighbor, giant stereo speakers & smell.
b) You need land
i) Includes air above, soil below, but only out to a reasonable distance.
(1) No claim against delta v. 9 yrs old hits nothing, touches nothing, but
throws ball over property  valid COA for trespass. Physical invasion - &
a tangible object onto land. (if you’ve moved your arm onto their land!)

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7) Tresspass to Chattels & Conversion
a) Both involve an intentional interference w/ P’s personal property (synonyms 
everything you own except land and buildings, and anything attached to them)
Car, laptop, purse, hat, phone, etc.
b) Interference - one of either 1) deliberately damaging it, 2) taking it away from
you.
i) If degree of interference is relatively modest then approp claim is trespass to
chattels, if extensive or signif, go w/ conversion. (so if you have theft or
vandalism charge these) Law split these apart so that conversion victim cld get
recovery of full market value, not merely cost of repair.
(1) Key car = trespass to chattels, remedy is $ to fix car vs. Extreme harm to
car = conversion, even if cld repair for 12k, must pay full market value.

8) Affirmative Defenses to Intentional Torts

a) Consent
i) Only a P w/ legal capacity can consent.
(1) Children have capacity to consent to age appropriate activities, but not
beyond knowledge (sex, surgery, etc)
ii) Express consent - words in “” marks, that P either writes or speaks that gives
D permission to behave in a challenged way.
(1) Express consent is void if obtained through fraud or duress. [consent to act
of sexual intimacy, w/out knowledge were infected w/ STD, concealed
material info, form of fraud, renders consent void so was battery].
iii) Implied Consent - can be based on custom or usage. If P goes to a place or
engages in an activity where certain (usually minor) tortious invasions are
routine, P is considered consented.
(1) Ex. playing sports. (ie not an actionable battery on bball ct. Rules of game
are irrelevant to issue of consent, you consent to usual actions) Foul v.
getting hand stamped when on the ground.
(2) Def’s reasonable interp of P’s overt conduct: woman dates man 3 mo, he
buys flowers, she has invited him to dinner, while off getting vase. He sees
that lights turned down and candles, etc. When she turns head, he says “I
reasonably interpreted overt conduct - you consent.”
(a) The JURY decides if he’s reasonable. Trial judge decides if it shld go
to jury. Not consent for sex, that would be battery for torts.
(b) Note - the P’s subjective mental processes not part of your analysis!
It’s a trick! Rely only on observable conduct.
iv) Consent always has a scope - if def exceeds it, hold def liable for tort.
(1) Not an all or nothing, but a dimmer. (you can invite people to certain parts
of the house, not attic; doc for knee surgery, also gave nose job! - battery!)
b) Self Defense, Defense of Others, Defense of Property (protective privileges)
i) Proper timing: the tortious invasion that def is responding to, must be in
progress or imminent. Timing no good if tortious behavior is over. Must act in
moment. [no revenge.]

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 ii) Need a reasonable belief that tortious invasion is about to happen: if
reasonable belief gives you a protective priv; a reasonable mistake does NOT
destroy privilege. Ex. P has gone shopping, alarm sounds, don’t let him leave,
they detain. Store has a valid defense of property - they acted reasonably
under circs given alarm sounded. Their mistake didn’t negate defense even
though not their prop at time, he’s paid!
iii) Assuming timing & reasonable belief you can only use that amt of force
(not excessive force) that would be reasonable under circs. (someone’s
getting ready to slap you- can slap back, knock hand away, shove). If human
life in jeopardy, law permits you to use deadly force. You or a 3d person.
(1) No deadly force to protect property.
(2) *MD DISTINCTION - follows the retreat rule; if you can you must retreat
b/f using deadly force. If fail to take advantage of viable retreat hold liable
for battery. Doesn’t apply in own home.

9) The Necessity Defenses

a) Relate only for the 3 Property Torts: trespass to land/chattels & conversion
b) Public Necessity
i) Sitch arises when a def invades P’s property in an emergency to protect
community as a whole or a significant grp of people. A pub necessity def is
a true good Samaritan.
ii) ZERO LIABILITY in a pub nec fact pattern (he has to grab something,
maybe destroy it to save city). Ex. see kids w/out any adult supervision w/
dog, realize dog chasing, foaming at mouth. You shoot dog. You get sued shot
dog owner (dog treated same as property, so trespass to chattel & conversion
- this wld be conversion) Defense is public nec.
c) Private Necessity - def interferes w/ P’s property in an emergency to protect an
interest of his own.
i) This is only a threat to his own safety or his stuff.
ii) Legal Consequences:
(1) Must pay for actual harm he causes (liability for econ damage)
(2) No liability for nominal or punitive damages
(3) A private necessity defendant, may remain in a position of safety as long
as emergency continues (on P’s land, the P landowner who wld normally
have privilege to throw him off land, cannot) Right of sanctuary.
(a) Dave flying airplane, lands on cornfield but saves life. P sues D for
trespass to land. Still must pay man for corn.
(b) Dave runs to barn to get away from bull. Pete sues him for trespass, he
can’t seek actual damages b/c are none! Maybe he asks for nominal
damages for principle of the thing. NO - principle doesn’t apply in this
case. Punitive damages, also no. Dave has a valid COA against Pete,
when he scares him by shooting gun to make him leave barn w/ bull
there, for battery, when bull contacts body of dave - pete not entitled to
scare him off land as long as ER exists.

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DEFEMATION
1) Elements:
a) The Def must make a defamatory statement about the P, and in that statement
specifically ID the Plaintiff
i) A statement is defamatory if it tends to adversely affect reputation
ii) Insults, namecalling, cursing them out doesn’t affect rep, so not actionable
(1) Typically an assertion of fact that reflects negatively on character (ie smith
embezzling $ from co. where employed)
iii) Statement of opinion is defamatory if a reasonable person wld conclude
that it’s fact based. (Smith my attorney last year and in my opinion you’d be
foolish to let him to handle escrow accts, opinion suggests a degree of
dishonesty and sounds like based on facts).
iv) P must be alive at time statement made
b) Publication - must be evidence that Def published defamatory statement.
i) Doesn’t mean anything written. [ex. ask someone to stay, privately tell them
they have syphilis. Cannot be any harm to reputation on this scenario b/c it’s
what other people think of you!
(1) It’s a de minimis requirement - can share it w/ one other person (that’s
publication) P may win only to discover $1 victory, more people told,
more reputational harm, more $ recovered.
(2) Publication can be acts inadvertence!!!
c) Damages, maybe
i) Libel - defamation captured in a permanent form (handwritten note; published
on front page) Don’t need to prove damages get to jury on the 2 elements.
ii) Slander - spoken defamation, can be one on one, public speech.
(1) Slander per se  statements considered to be so hurtful to reputation that
law considers them same as libel for purposes of damage requirement.
Gets to jury on same 2 elements. Def: any statement by def that falls
within 4 topical categories (not ex’s, a closed list)
(a) Spoken statement by def relating to P’s business or profession
(b) Statement that P committed a crime of moral turpitude:
(c) A statement imputing unchastity to a woman
(i) Means to suggest that an unmarried woman is sexually active! It’s
up to the woman - she’s allowed to bring claim if upset.
(d) A statement by def that P suffers from a loathsome disease
(i) Leprosy, venereal disease.
(2) Slander not per se  any other slanderous statement. Here P is obligated
to prove damage b/f sent to jury. Damage means economic harm.
Revenue down at business. But emotional/social harm doesn’t count.

2) Defenses:
a) Consent  see above - express or implied.
b) Truth
i) If def demonstrates that thing he said or wrote is accurate, end of case.
c) Privilege
i) Absolute  granted based on the ID of speaker (2 to worry about)

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 (1) Spouses - married people communicate, can say whatever they want to
each other, if they defame someone else, that doesn’t count.
(2) Statements made by officers of one of three branches of gov in the conduct
of their official duty. Here privileges apply to lawyers, judge, etc -
anything in open ct!
ii) Qualified Privilege  based on the occasion of the speech, not on the ID of
speaker. Arises when there is a public interest in promoting candor and full
disclosure.
(1) Ex. (not a closed list) Letters of recommendation (social utility in having
them feel free in discussing credentials candidly), credit reports,
statements made to cops.
(2) It’s qualified if def can show 2 reqs to retain priv
(a) Def must have a reasonable belief in the accuracy of info in Q.
Typically info will turn out to be inaccurate (if it was accurate, it wld
fall under truth def) If know it’s false, don’t have reasonable belief its
true, can’t deliberately spread lies, so that destroys priv.
(b) Must confine yourself to matters that are relevant. If you inject
irrelevancies, lose priv.

3) Matters of Public Concern

a) In certain cases we make it harder for P to win. If matter being spoken of is one of
pub concern, then we make it harder for P to win by demanding proof of
additional elements. (1stA makes us nervous about chilling free speech)
b) Ex. Mayor taking bribes w/ city k’s; army general is understating casualties in
iraq; pro athlete doping. Then you demand P prove:
i) Prove Falsity
(1) Now up to plaintiff to prove false, rather than affirm def of truth
ii) Fault
(1) Def has something other than a reasonable belief in the accuracy of the
information.
(2) If plaintiff is a public figure - then P must show that the D knew statement
was false, or D spoke w/ a reckless disregard for the truth
(3) If P a private def - can show that it was made negligently, means didn’t
reasonably verify accuracy. (ie Mayor’s secretary helping him, etc)

PRIVACY
1) Appropriation
a) D uses P’s name or picture for a commercial advantage (To take something that
doesn’t belong to you) Ex. cereal manufacturer uses celeb image on box w/out
permission. Can’t do that, Woods has COA.
i) EXCEPTION - newsworthiness: not a tort for SI to put him on cover (comes
close to regulating core free speech issues)

2) Intrusion
a) An invasion of P’s exclusion, in a way objectionable to average person

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 i) Ex. wiretapping, secret video surveillance, intercepting email
communications, and low-tech eavesdropping, monitoring (listening at
keyhole, peeping at window)
b) P must be in place where there’s a REP to have a COA (home, car, hotel room?)
c) No req of an entry on P’s land, can be in conjunction w/ trespass but not required.

3) False Light
a) Widespread dissemination of material misrepresentation about P that wld be
objectionable to an avg person.
b) Cf. defamation publication requirement (pub is de minimis!) LOTS of people
c) Can be defamatory, but not limited to defamatory statement
i) Mischaracterizing P’s beliefs
ii) Exam trick: may have reasonable belief that info is accurate, but intention
doesn’t matter! Don’t gossip about neighbors, good faith no defense.

4) Disclosure of Private Information

a) Widespread dissemination about confidential info about P objectionable to avg
person. (doesn’t have to be false!)
i) Ex. medical records.
b) EXCEPTION: But newsworthiness. Tort for post to publish you records, not a tort
to pub Cheney’s records. Interpreted very broadly - what’s in tabloids is intimate
information, it’s ALL newsworthy!
i) *** DUAL LIFE FACT PATTERN - P functioning in 2 spheres/realms -
recreational area/ fam, and public/private - both will be open or public. Tries
to keep them secret. One person will carry from one to another - but not
actionable b/c underlying info not considered confidential, not enough that
you’re trying to keep info secret.
(1) Pete out at 28, politically active in gay community and at home, but not
out at work. Pete sues for disclosure of confidential fact, underlying factno
private so no COA!

5) Defenses for Privacy Torts

a) Consent for all 4, express/implied - see above
b) Absolute privileges and qualified priv from law of defamation.
c) Spouses
d) Gov officers
e) Qualified -- for false light and disclosure only
i) Prof writes rec letter, disclosure of transcript w/out students permission - it’s
relevant to matter at hand, area where we want to encourage candor, etc.

NEGLIGENCE
1) Elements
2) Duty ***
a) The Q of to WHOM do we all owe a duty of care?

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 i) Owe a duty to foreseeable victims (you do not owe a duty to unforeseeable
victims, they always lose negligence claims) Unforeseeable victims - 2 guys
rushing to catch train. Tries to give him a push on train, dropped package,
fireworks. OWE A DUTY TO PEOPLE WITHIN ZONE OF DANGER.
(If victim far away going to lose claim.)
(1) EXCEPTIONS
(a) Rescuers: person who begins prob very far away, comes into scene,
will not be denied recovery b/c of that fact. Get a free pass on “zone of
danger” issue, but must show everything else.
b) HOW MUCH care do we owe?
i) That degree of care given by a hypothetical reasonably prudent person
acting under similar circumstances (Default stnd, plain vanilla stnd)
ii) We don’t make any allowances for that def’s individual attributes Stnd is
objective (even for def’s who lack ability to live up to stnd we hold them up to
the stnd) Ex. Mental retardation held to reasonably prudent stnd, someone
who is a beginner at something (new driver)
c) EXCEPTIONS to the Reasonable Person Standard (aka SPECIAL DUTIES)
i) Superior skill/knowledge, then stnd becomes RPP w/ that skill or info (must
drive his car in a skid, with skill of nascar driver, neg if doesn’t use that skill
here)
ii) Physical characteristics - the RPP is always assumed to have those physical
characteristics of def. Beyond these 2 don’t customize the RPP stnd for
anyone.
iii) Where children defs:
(1) Under age of 4, owe 0 duty of care so incapable of neg.
(2) Age 4-18***  owe the care of a hypothetical child of similar age,
experience, intelligence, acting under similar circumstances.
(3) NB - differs b/c almost opposite from reasonable person stnd b/c so
subjective, almost pro-def, hard to find neg. 6 yr old operating tricycle
owes duty to others riding tricycle of a 6 yr old (and counts experience,
intellect). They can be found neg, but tilts away from that.
(i) EXCEPTION - when child engages in an adult activity, held to the
standard to a reasonable prudent person, objective stnd (typically
operating a vehicle w/ an engine)
iv) Professionals as Defendants (prof malpractice, typically docs or other
healthcare providers)
(1) A professional, including a doctor, owes patients and clients the care of an
average member of that profession who practices in a similar community.
(a) Empirical - go out in world and investigate what others ACTUALLY
DO in this field. Law is telling professionals to be conformists. “The
custom of the profession is the stnd of care.” In non prof cases,
customary practice is some evidence of how reasonable people behave.
[here AVOID word REASONABLE!!]
(b) For the similar community, distinguish b/t primary care professionals
v. specialists

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 (i) Primary care physicians judged by geographic stnd - doc in
Chicago, shld prac medicine same way Atlanta, NY. Rural Wy
doc shld prac same way as upstate NY.
(ii) But a specialist is judged by the professional community of fellow
specialists (cardiologists shld practice same way ALL others do it,
if WY or in downtown Chicago).
v) Negligent Claims asserted on Real estate v Possessor of Property
(1) Must look at 2 pieces of info in fact pattern: (a) how entrant on real estate
got hurt (home, store, farm land) - some get hurt by activities being
conducted on land by possessor or possessor’s employees (harvested,
pouring coffee, etc) OR by a dangerous condition on the land. (B)
Determine what type of entrant:
(2) Undiscovered trespassers - comes on land w/out permission and possessor
doesn’t know they’re there.
(a) Owed ZERO duty of care. (will always lose a negligence claim against
possessor of property) (think, perfect ex. of an unintended victim)
(3) Discovered trespassers - also includes anticipated trespassers (when shld a
landowner anticipate trespassing, when there has been a past practice of
trespassing)
(a) Owe them the duty of a hypothetical, reasonably prudent person acting
under similar circs (plain vanilla default stnd of care)
(i) Hiker in plain view, you need to operate harvester in plain stnd,
operate machine w/ eyes open pay attention. (means this case is no
longer a special case really)
(b) Possessor must protect trespasser from dangerous conditions meeting 4
part test:
(i) 1) condition at question must be an artificial condition (means built
by human beings) No duty w/ respect to natural conditions (dead
tree limbs can blow off, quick sand, rock slides). 2) Must be a
highly dangerous condition, capable of killing or maiming (no duty
to protect from mildly dangerous condition). 3) Condition must be
one concealed from trespasser. (no duty to protect them from open
and obvious conditions) 4) Must have advanced knowledge of
condition (no duty to inspect premises!) Possessor has to protect
trespassers from known, manmade, death traps
(c) If hurt by that, he was owed a duty will win. If hurt by anything else,
not owed a duty. [Dave’s ranch, Pete trespasser in plain view, headed
straight for rotten wooden foot bridge that he knows about - YES.
Given that 4 part test is met it’s a known, manmade, death trap, owes a
duty, if does nothing, neg.]
(4) Licenses - enters land w/ permission, but not for any commercial benefit
of the land owner. (Typically GUESTS)
(a) Duty: activities - owes duty of reasonable prudent person under
circumstances (plain vanilla).
(b) Dangerous conditions - possessor must protect from any condition
meeting a 2 part test: 1) condition must be a concealed condition (no

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 duty w/ respect to an open/obvious danger); 2) must be one that def
knew about in advanced (no duty to inspect) [sum - owe a duty to
protect against all, known traps]
(5) Invitees - enter land w/ permission, for a commercial benefit of landowner
OR b/c the land is open to the public generally (Shopping & Airport
terminals, place of worship, museum free)
(a) Duties - Activities = plain vanilla stnd of care (reasonably prudent
person under circ).
(b) Dangerous conditions - must protect invitee from any condition
meeting 2 part test: 1) if condition concealed, and 2) condition must be
one that owner/occupier knew about in advance or cld have discovered
from a reasonable inspection. Inspection reasonable if kind of
inspection RPP wld do- takes into acct costs and benefits, so
reasonable in frequency and thoroughness - land possessor not
insurance co.) [Possessor owes invitee duty to protect from all
reasonably knoweable traps on land]
(i) You must est that GW knew about it in advance or cld reasonably
have discovered (seat in class breaks in GW) how often & how
thoroughly inspect classroom and if that stands up to reasonable
stnd.
(ii) *MD - subtracts some people from licensees (bare licenses)
category  people who enter land w/ permission for their own
convenience and not as social guests. Ex. recreational users,
someone asks to hunt deer on property. Treat them as if discovered
trespassers
(6) FN 1 - Firefighters and police officers  never recover for injuries that
are an inherent risk for their jobs (getting burned)
(7) FN 2 - child trespasser injured by an artificial condition on land entitled
to care of reasonably prudent person. The more likely it is that kids will
trespass, the safer should make property. Among things that wld make you
conclude trespassing likely (pattern of past tress, next to high school) if
there’s something on land particularly tempting /appealing  (pyramid of
truck tires) Attractive nuisance doc - owe a reasonably prudent stnd of
care, make land safe. Note - that person can factor in ability of children to
protect themselves.
(a) *MD - child trespassers are treated same as adult trespassers.
(8) FN 3 - in any case involving a condition (any kind of entrant, any kind of
condition) that possessor can satisfy duty in 2 ways: 1) can fix problem;
2) possessor can give an adequate warning, satisfies the duty and avoids
liability. (think warning signs for wet floors - yellow, picture)
vi) Statutory Duty
(1) Sometimes in cases a statute, typically criminal or regulatory so no
relevance to civil litigation (statute is factually relevant but legally
inapposite). For P to be entitled to borrow a legally inapposite statute and
set it up so that statutory violations become negligence per se  must
make 2 part demonstration:

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 (a) He is a member of the class of persons statute seeks to protect
(b) The accident is a type of risk the statute is trying to prevent
(i) Then stat becomes duty stnd, violation = neg per se. Concise:
“class of person class of risk” test.
(ii) So Def can no longer say, wife in labor, etc. Ex. woman leaves to
go to work, unaware that gas leaking from stove. Lights match to
smoke pot, blows out neighbors’ wall. Statute prohibiting pot
possession. Class of person/ risk?  what risk is stat criminalizing
possession of pot designed to protect? (designed to protect drug
user for self injuring conduct, and not designed to protect blowing
up apt) So under these circs the P can con’t litigating under stnd of
reasonably prudent person.
(2) EXCEPTIONS
(a) If compliance w/ a statute wld be more dangerous than violating the
statute, we don’t use the statute even if the 2 part test is met.
(b) If compliance wld be impossible in the circumstances we don’t borrow
the statute. (Dave driving and has heart attack)
(i) *MD - violation of such a statute is only evidence of negligence,
not negligence per se (means that it doesn’t shut down or preclude
def’s counter args about reasonable under circumstances)
1. MD - tends to be a pro defendant state.
d) Duties to Act Affirmatively
i) ARE NONE. We don’t demand as a matter of law that you undertake activity,
but when you chose to do so, you must undertake activities reasonably.
(1) Ex. B/c there’s never a duty to do anything affirmatively, no duty to
rescue a person in peril. Watch for person who seems evil.
ii) EXCEPTIONS:
(1) If def caused the peril
(2) If there’s a pre-existing rela b/t def and person in peril triggers duty to
rescue. [family (not limited to blood relas); common carrier or inn keeper;
possessor of land and invitee (Giant shopping)] Understand it’s a duty to
rescue reasonably under the circumstances - def does NOT have to put
own life in jeopardy (ie. Run into burning building, if you don’ know how
to swim…)
(3) If the person has no duty to rescue, but voluntarily tries to rescue, that
person is now liable if he or she screws up the rescue (like driving car,
don’t want to don’t have to, but if you do it, you must do it reasonably)
(a) In MS no good Samaritan law. In MD - good Samaritan law applies to
certain occupations: doctors and nurses, police, firefighters, and
EMTs, and ski patrol.
e) Negligent Infliction of Emotional Distress
i) Def breaches one of other duties, negligent, he doesn’t cause any direct
trauma to body of P, if there was, normal vanilla stnd). 2 conditions must be
satisfied for distressed P to recover
(1) He was w/in a zone of physical danger (must be near miss!)

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 (2) Subsequent physical manifestation of the distress. So 1) D negligent, 2) P
distressed, and 3) physical manifestation - it can be nearly instantaneous to
a few weeks later. (Ex. heart attack, miscarriage (ask yourself is this
manifestation something that can be objectively verifiable))
f) By-stander distress claim
i) Diff’t emotion (normally fear, fright, anxiety) here sadness, grief, horror: P
observes contemporaneously an injury to a close family member. (e.g.
bystander claim, seeing child die).
ii) Note - is this a bad actor def or a careless def for negligent vs. intentional
infliction of emotional distress.

3) Breach of duty
a) P must ID def’s wrongful conduct and explain why it’s wrongful.
i) Factual and argumentative component, point to smthing beneath stnd of care,
then why)
ii) note that inverse rela b/t specificity of duty and amt of convo on breach
(1) “Dave breached b/c he was playing with radio, and took eyes off road but
NEED to say ‘and reasonable people do not take their eyes off road.’”
Need facts and explanation/agruement.
b) RES IPSA LOQUITOR
i) (Breach doctrine that applies when P lacks info about what D did wrong)
Wooden barrel w/ flour hits man in head walking by warehouse.
ii) Elements:
(1) P must show that the accident is of a type normally associated w/
negligence (this is an argument about probabilities, most of the
time/typically/ordinarily someone screwed up when we reason back from
outcome). ALSO - “show it’s true” normally can just be satisfied by an
appeal to common sense, almost like judicial notice. If P offers evidence,
then usually expert testimony.)
(2) P must also convince that whatever occurred, normally due to negligence
of someone in this defendant’s position
(a) Normally satisfied by demonstrating that D had control over the object
or instrumentality.
iii) If P shows these things then that’s a valid RIL claim & goes to jury -can
decide either way and verdict won’t be disturbed. Remember chewin tobacco

4) Causation
a) Factual Cause
i) P must demonstrate a connection/linkage b/t the breach and the injury suffered
(1) Was the breach a factual cause, not the defendant.
(2) The legal test is BUT FOR - the breach is a factual cause of the injury if
but for the breach P would be healthy. (playing w/ radio hit on road
scenario - but for that I’d be healthy. Imagine a second version of facts
w/out breach  Def can say, you darted out at last moment, even if I had
been looking, I still woulda hit you, thus breach didn’t make diff. Up to
jury to decide which ending of version B movie more plausible.

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 ii) Multiple Defendants: 2 scenarios
(1) Merge Cause Cases
(a) 2 negligent parties, not acting in concert, negligence will release in
world destructive force, will operate separately and will merge
eventually (2 campers negligently leave forest fires smoldering, merge
into one and that fire causes damage to P’s home). Instead of “but
for” test they use the “substantial factor” test: did each def
contribute to the ultimate injury in a substantial or significant way.
(i) If both substantial factors then both J/S liable.
(2) Unascertainable cause
(a) Larry, Curly hunting quail together. Moe by himself. Both hit Moe w/
shot. One shot hits moe. Means breach of one guy caused blindness,
but other’s breach didn’t cause anything. So here causation is
unascertainable. P has burden of proof on all elements, he has to
show by preponderance (more likely than not) - so impossible for him!
(b) Here it is up to defs to negate, burden shifts, must show their
respective breach could not have caused the injury. If one of them
carries that burden, that D is out, if neither one can then hold them
jointly, severally liable.
b) Proximate Cause/ Legal Cause
i) Think of it as FAIRNESS, fair to hold them liable. (Dave driving hits
someone, vehicle hit filled w/ dynamite, result 100 people dead. What
happened is so disproportionate to his wrongdoing, but most P’s satisfy easily,
only a prob in unusual cases.)
ii) Fairness measured by FORESEEABILITY. It’s fair to make people pay for
foreseeable consequences of their carelessness.
iii) Types of Q’s
(1) Direct cause fact patterns:
(a) D breaches, causes injury. Direct sequence - outcome almost always
foreseeable and liability almost always fair and almost always call D
the proximate cause.
(b) Only time that’s not true when outcome can be characterized as
freakish & bizarre.
(2) Indirect cause
(a) D breaches, other stuff happens afterwhich P suffers harm. There are 4
well-settled types of cases [in all four precedent tells us that the def
will be held liable]
(i) Intervening Medical Negligence  Hit and run driver caught,
poor P taken to hospital, but poor med treatment w/ cast causes
him to lose leg. Driver liable for direct cause broken leg, or
amputated leg that came after intervening med negligence - the
latter. B/c - if you hurt someone and force them to seek med
attention, it is foreseeable that in some % of cases docs will make
it worse not better. (ask, was it foreseeable, was it fair to make him
pay, okay he’s the prox cause of leg)
1. FN - in hypo doc who screwed up is also liable.

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 (ii) Intervening Negligent Rescue  same. Good Samaritan tries to
rescue him, but dislocates guys shoulder. Red light runner liable
for leg and shoulder. (b/c when you hurt someone rescuers are
attracted and in some % of cases it’s foreseeable that they’ll make
it worse, so only fair to make you pay when it does.)
1. FN - liable for making things worse, unless protected by a good
Samaritan law (unless policeman in MD)
(iii) Intervening protection or
reaction forces  same, stampede in intersection afterwards,
someone steps on face of guy hurt.
(iv)Subsequent Disease or Accident  P taken to hospital, well
taken care of, while trying to move around on crutches, he falls and
breaks arm - driver liable for leg and arm b/c foreseeable.
iv) If not one of these 4, focus on breach - why are you calling it a breach. What
are you worried about, try to ignore everything in mid of problem, look at
what happened to P, then ask is that what I was afraid of - if so then you’ve
convinced yourself it was foreseeable/fair.
(1) Serving bad shrimp hypo - Breach is serving rotten food, why do I cause
that negligence? Does bad shrimp foreseeably break arms? NO.

5) Damage
a) “Eggshell Skull Doctrine”  once all other elements checked off, D has to pay all
damage suffered by P even if it’s surprisingly great in scope.
i) You take P as you find P; doesn’t matter that you didn’t know, doesn’t
matter if it’s rare or unforeseeable.
ii) This principle is a universal principle of tort law, applies to every tort
iii) *MD - has capped pain & suffering damages - goes up every yr (600+,000)

6) Affirmative Defenses for Negligence

a) Traditional Contributory Negligence (minority, MD)
i) If D shows that P failed to take reasonable care for his own safety, P recovers
NOTHING. (absolute bar, any fault on part of P)
ii) Lessening effect:
(1) “Last clear chance rule” - if after the moment of P’s negligence, D cld
still have avoided the accident, but didn’t, then D liable. Say “last clear
chance neutralizes P’s fault”
b) Traditional Implied Assumption of the Risk (minority, MD)
i) P’s conduct communicates message “I know I’m dealing w/ a neg person and
I’m willing to take my chances.” Cts look for:
(1) Was there knowledge of the risk? Did P know and appreciate that he was
interacting w/ neg person who’s behavior heightened risk?
(2) Did P voluntarily encounter the risk? (getting in w/ a drunk driver)
(a) If P had no choice, that’s not assumption.
(b) If yes, it’s an ABSOLUTE BAR, P recovers nothing.
c) Majority Rules  Comparative Negligence (comparative responsibility)

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 i) When we have evidence of P’s carelessness, we ask jury to way each’s
carelessness and assign each of them a percentage fault number. P’s
recovery is reduced in accordance w/ jury’s percentage fault number. So
here not an absolute bar. [Pete suffered 100k in damage, and 30% to blame b/c
jaywalking, Dave 70% liable- ct will enter judgment in favor of Pete for 70k]

STRICT LIABILITY
1) Injuries caused by animals
a) Domesticated Animals (dog bite cases)
i) You are not strictly liable for injuries caused by your dog. P has to show
you were negligence. BUT you are strictly liable if you have knowledge of
your dog’s vicious propensities. (typically get knowledge that he bit
someone previously). Bite 1 = negligence liability. Bite 1+ = SL.
b) Wild Animals
i) Strict liability immediately (safety precautions irrel, not admissible at trial)

2) Ultra Hazardous Activities (defined by a 3 part test, essay)

a) Can’t be made safe through existing technology
b) The activity is one that poses a risk of sever injury or harm
c) Activity is uncommon in the area where it is carried out
i) Ex. blasting, explosives; anything involving really dangerous chemical or
biological substances; radioactive material or nuke energy.
ii) Remember safety precautions irrelevant!

3) For product liability = 4 element claim

a) D was a merchant (only a merchant can be held strictly liable, someone who
routinely deals in goods of this type)
i) Watch for Q’s w/ “casual sellers” - they can’t be held SL (e.g. the person
selling on Ebay, garage sale, advertiser in newspaper for car sale) if injury
caused by product no SL. Also watch for a service provider: not a merchant
for any items made incidental to service and not SL for services (e.g. a
restaurant, your chair collapses, they are NOT SL for defective chair b/c not a
merchant for chairs). Also watch for a commercial lessor, they are merchants,
hold them SL if problem. (e.g.You rent a car in FL, brakes fail, car co SL.)
ii) Every merchant in distribution chain is vulnerable and liable for SL
claim  not limited to merchant that P delt w/ directly. Buy black and decker
saw at home depot. Home Depot and Black and Decker SL - there is no
privity requirement here!
b) Product must be defective (2 ways)
i) Manufacturing defect (if diff from all others that came off same assembly
line in a way that makes it more dangerous than consumers wld expect)
“aberrant and unexpectedly dangerous” - or it’s the 1 in a million.
ii) Design defect  if P can prove there’s a physically different way product can
be constructed. (hypo alternative design - HAD) P must show that the HAD
meets 3 tests:

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 (1) HAD must be safer than version marketed, eliminate risk
(2) HAD must be cost neutral - must be able to build alt at about same price as
original
(3) HAD must be practical - can’t make prod difficult to use, undermine chief
purp or central utility.
(a) If HAD meets all three then the version marketed is deemed defective
and anyone merchant selling it is vulnerable to SL.
(b) Produce info - warnings or instructions  can still have a defective
design, if product lacks info:
(i) When there’s a residual safety risk that cannot be physically
eliminated in a practical and cost neutral way of which the
consumer is not aware. Under those circs, if product lacks a
warning, it’s defective in design. Warning must be calculated
to come attention to consumer, must be clear, understandable.
(may have to use pics, be multilingual)
(c) If there’s a physical redesign that meets 3 part test, you don’t avoid
liability by slapping a warning on product.
c) P must demonstrate that product was not altered since it left the defendant’s hands
i) There is a presumption that if product moved in ordinary channels of
distribution, it has not been altered.
d) P must be a foreseeable user and be making a foreseeable use of the product
i) Doesn’t have to be intended use, but one that cld or shld have been
anticipated. (step on chair to get something on high shelf)
e) In MS world use a comparative fault approach  percentage fault if P sees toaster
emited sparks, but goes to it anyway.

See nuisance (1 MC Q)

VICARIOUS LIABILITY
1) Liability who has no connection to the def, instead def is connected to tortfeasor by
some relationship
2) Employer and Employee
a) Employer VL for torts of employee, provided they’re in the scope of employment
b) Intentional torts normally outside scope of employment; but if they’re done in
some way to serve purp of employer, inside scope.
3) A hiring Party and a Contractor - no VL there, but exception: if an invitee is
injured on private property, the possessor is VL caused by an independent contractor
on private property.
a) Shopping mall liable for hiring flower service, changing pots they drop pot
4) Car owner and driver - no VL, but exception: if driver doing an errand for owner,
opposite result.
5) Parents and kids - Parents not VL for torts of kids.

CO-DEFENDAT LIABILITIES

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1) In most places around country, can get money from each other. If one D pays in full
can get money back from other D’s on a percentage basis assigned by jury
a) Exceptions - out of pocket D can get all money back (indemnification)
i) A VL party gets all $ back from active tortfeasor
ii) A nonmanufacturer held SL for a product can get all $ back from
manufacturer. (Home Depot cld get $ from black and decker)

LOSS OF CONSORTIUM
1) Any time victim married, uninjured spouse can sue same def(s) to recover 3 types of
damages:
a) Loss of services (laundry, do dishes)
b) Loss of society (company, companionship)
c) Loss of sex

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