Torts I Outline Without Damages and Defenses For Negligence

Torts I Outline
I. Battery
A. Battery occurs when the D’s actions result in a harmful or offensive contact to the
P
B. Analytical Framework
1. Battery
a. (1) Contact
i. (1)(A) Harmful or Offensive
ii. (1)(A)(1) Harmful
 (A) Extended Personality Doctrine
iii. (1)(B) Offensive Contact
b. (2) Requisite Intent to Commit Battery
i. (2)(C) Transferred Intent of Harmful or Offensive Contact
c. (3) Causation between D’s Act and P’s Harm
d. (4) Sufficient Damages
e. (5) Defenses
C. Framework Broken Down

1. Battery
a. Rule: Battery occurs when the D’s actions result in a harmful or offensive
contact to the P
b. (1) Contact
i. Rule: Contact with P’s person exists when contact is made with P’s body
or anything touching it
c. (1)(A) Harmful or Offensive
i. Rule: The D’s act must cause (1)(A) harmful or (1)(B) offensive contact
to the P’s person
 Rule: Harmful means actual physical harm with the P
 Rule: Extending the sphere of personal autonomy to include
such items protects against intrusive contacts that are very likely
to be offensive, thus raising the ante in physical confrontation
 Explanation: Anything that is in contact with the P’s body is
also considered contact which includes objects intimately
associated with the P’s body
 Rule: Offensive means the act is harmful to one’s reasonable sense
of dignity and an objective standard that violates social convention
 Explanation: Under this test, a contact is offensive if a reasonable
person in the circumstance of the victim would find the particular
contact offensive
 An actor is not liable under this definition for a contact that is
considered socially acceptable (i.e., that would not offend a
reasonable sense of personal dignity), even though the victim turns
out to be hypersensitive and is truly offended
 Even if the contact is not harmful, it is tortious if it is offensive
 If the D makes a contact that the reasonable person would find
offensive, it is not a defense that the D did not mean to offend, or
that she did not realize that the victim would be offended
 Once a person is on notice that they don’t want to be touched and the
D touches the person then it is considered battery
d. (2) Requisite Intent to Commit Battery

i. Rule: One must act with the intent to cause a harmful or offensive
contact.
ii. Explanation: Intent is defined as one acting “knowingly” to the degree
of substantial certainty that harm would result or acting “purposely,”
with the desire to bring about the consequence of his act
 Consider if transferred intent applies
iii. (2)(C) Transferred intent of harmful or offensive contact
 Rule: When an actor intends to commit a battery on one person and
actually inflicts one on someone else
 Explanation: If an actor tries to batter one person and actually
causes harmful or offensive contact to another, then she/her will be
liable to the actual victim
 Under transferred intent, D will be liable whether she hits her
intended victim or someone else
 Note: Transferred intent also holds actors accountable if an
intentional tort is attempted but another tort is the result
iv. What if there was no intent to cause a batter?
 A battery can be committed even when the D is trying to help out the
P (good motives behind the actions).
 Illustration:
 In Clayton v. New Dreamland Roller Skating Rink, Inc., the
defendant’s employee attempted to set the plaintiff’s broken
arm, against her protests. While the employee was only trying to
help, he knew (because the victim told him so) that she found the
contact unwelcome, and consequently met the intent
requirement for battery.
 Rationale:
 Tortfeasor’s act is just as culpable when her aim is bad as when
it is good
 It would be unconscionable if she were exonerated just because
she hit the wrong person
e. (3) Causation between D’s Act and P’s Harm
i. Rule: The act must be a substantial factor in causing the harmful or
offensive contact
ii. Explanations: In other words, if it weren’t for the D’s actions, the P
would not have suffered the harmful or offensive contact. But for the D’s
exclusive act and sequence of timing, the act would not have occurred.
f. (4) Sufficient Damages
i. Rule: Damages can be nominal or actual.
 Actual Rule: Physical harm, severe emotional harm and distress and
economic injury
 Nominal Rule: Everything else (dignitary harm) i.e., prideful sense
of dignity being insulted
g. (5) Defenses
i. See below: Consent, Self-Defense, Defense of Others, Defense of
Property
II. Assault
A. Assault occurs when D’s actions result in an apprehension of an imminent

harmful or offensive contact to the Plaintiff’s person
1. Assault
a. (1) Imminent Apprehension
i. (1)(A) Harmful or Offensive Contact
 (1)(A)(1) Harmful
 (A) Extended Personality Doctrine
 (1)(B) Offensive Contact
b. (2) Requisite Intent to Commit Assault
e. (5) Defenses

1. Assault
a. Rule: Assault occurs when the D’s actions result in imminent apprehension
of harmful or offensive contact to the P
b. (1) Imminent Apprehension:
i. Rule: Apprehension of harmful or offensive requires an overt act;
imminence; reasonableness as judged from the vantage point of the one
threatened; and knowledge of the act at the threat is made
ii. Explanation: Imminent apprehension need not amount to fear but only
anticipation that a harmful contact may occur and it exist where one has
at least the apparent present ability to carry out an intention to cause a
harmful or offensive contact to another. Note that future threats nor
words are not enough to satisfy assault.
iii. From the reasonable person perspective, reasonable imminent
apprehension actually exists, as we are required to determine under the
rule articulated above to establish liability, we must prove that a
reasonable person in the same or similarly situated circumstances to
Dillon would have been put in imminent apprehension of harm by
c. (1)(A) Harmful or Offensive Contact
i. Rule: The D’s act must cause (1)(A) harmful or (1)(B) offensive contact
to the P’s person
 Rule: Harmful means actual physical harm with the P
 Rule: Extending the sphere of personal autonomy to include
such items protects against intrusive contacts that are very likely
to be offensive, thus raising the ante in physical confrontation
 Explanation: Anything that is in contact with the P’s body is
also considered contact which includes objects intimately
associated with the P’s body
 Rule: Offensive means the act is harmful to one’s sense of dignity
and an objective standard that violates social convention
 Explanation: Under this test, a contact is offensive if a reasonable
person in the circumstance of the victim would find the particular
contact offensive
d. (2) Requisite Intent to Commit Assault
i. Rule: One must act with the intent to cause a harmful or offensive
contact.
ii. Explanation: Intent is defined as one acting “knowingly” to the degree
of substantial certainty that harm would result or acting “purposely,”
with the desire to bring about the consequence of his act
iii. Transferred Intent: Transferred intent to cause imminent apprehension
harmful or offensive contact
iv. 2d. Rst. of Torts § 21 states that one who attempts to batter the P but
misses is liable for assault if the P is placed in apprehension of a blow
v. Because assault only protects against fear of a harmful or offensive
contact, the P must prove that she feared the type of contact would
support a battery if it actually occurred
vi. If a contact would not have been harmful or offensive had it been made,
the threat of that contact is not an assault either
i. Rule: The act must be a substantial factor in causing the imminent
apprehension of harmful or offensive contact
ii. Explanations: In other words, if it weren’t for the D’s actions, the P
would not have suffered the harmful or offensive contact. But for the D’s
exclusive act and sequence of timing, the act would not have occurred.
i. Rule: Damages need only be nominal but may be actual.
 Actual Rule: Physical harm, severe emotional harm and distress and
economic injury
 Nominal Rule: Everything else (dignitary harm) i.e., prideful sense
of dignity being insulted
g. (5) Defenses
i. See below: Consent, Self-Defense, Defense of Others, Defense of
Property
III. False Imprisonment:
A. False imprisonment occurs when the D acts to confine the P against the P’s
will within a bounded area
B. Analytical Framework:
1. False Imprisonment
a. (1) Confine P Against Will w/in Bounded Area
i. (1)(A) Confine (restrain)
ii. (1)(B) Against the P’s Will
iii. (1)(C) Within a Bounded Area
b. (2) Requisite Intent to Falsely Imprison
c. (3) Causation between D’s act and P’s Harm
e. (5) Defenses
i. (5)(A) Shopkeepers Privilege
ii. (5)(B) Reasonable Mistakes Perception
 (5)(B)(1) Private Citizens
 (5)(B)(2) Police Officer
iii. (5)(C) Lawful Arrest and Custodial Justification
C. Framework Broken Down:

1. False Imprisonment
a. Rule: False imprisonment occurs when the D acts to confine the P against the
P’s will within a bounded area
b. (1) Confine P Against Will w/in Bounded Area
i. (1)(A) Confine (restrain)
 Rule: The D must confine or restrain the P
 Explanation: Locking someone in a room (fully contained with no
way out)
ii. (1)(B) Against the P’s Will
 Rule: The confinement must be against the P’s will and the P must
be aware of the confinement
 Explanation: IF a person does not realize/perceive that he is
confined, then he is not suffering harm from the confinement
 Example: Truman Show – False imprisonment can begin after
confinement if you wake up and/or realize that you are confined
 Can be for any length of time
iii. (1)(C) Within a Bounded Area
 Physical Rule: The barrier must be either physical where a
reasonable person would not be able to get out of the area
 Explanation: P is locked in a room and cannot get out note that the
barrier does not have to have four walls
 Example: Whittaker: Island example (wanted row boat and it was
withheld): Court held that “withholding method” of leaving acted as
a physical barrier
 Threat Rule: Force of threat or threat of immediate force can also
serve as a barrier
 Explanation: Threatening to hurt someone, or someone’s family, if
they leave the room
 Example: Using a weapon to hold hostages in bank
c. (2) Requisite Intent to Falsely Imprison
i. Rule: One must act with the intent to confine P against his/her will
within a bounded area
ii. Explanation: Intent is defined as one acting “knowingly” to the
degree of substantial certainty that harm would result or acting
“purposely,” with the desire to bring about the consequence of his act
 Consider if transferred intent applies
iii. (2)(C) Transferred intent of harmful or offensive contact
 Rule: When an actor intends to falsely imprison one person and
actually imprisons another person
 Explanation: If an actor tries to batter one person and actually
causes harmful or offensive contact to another, then she/her will be
liable to the actual victim
 Under transferred intent, D will be liable whether she hits her
intended victim or someone else
 Note: Transferred intent also holds actors accountable if an
intentional tort is attempted but another tort is the result
iv. What if there was no intent to cause a batter?
 A battery can be committed even when the D is trying to help out the
P (good motives behind the actions).
 Illustration:
 In Clayton v. New Dreamland Roller Skating Rink, Inc., the
defendant’s employee attempted to set the plaintiff’s broken
arm, against her protests. While the employee was only trying to
help, he knew (because the victim told him so) that she found the
contact unwelcome, and consequently met the intent
requirement for battery.
 Rationale:
 Tortfeasor’s act is just as culpable when her aim is bad as when
it is good
 It would be unconscionable if she were exonerated just because
she hit the wrong person
d. (3) Causation between D’s Act and P’s Harm
i. Rule: Act must be a substantial factor in causing confinement or
restraint.
ii. Explanation: In other words, D’s act must cause the P to be confined in
one area or physically restrained
e. (4) Sufficient Damages
i. Rule: Damages can be nominal at common law and must be actual under
a jurisdiction adopting the Rst. of Torts
ii. Explanation: Under the common law, liability can be shown without
actual damages and under the Restatement actual damages must be
shown in order to have a claim
iii. Policy: Don’t want petty cases
iv. Private Citizens Arrest: If you’re a private citizen and you arrest
someone that did not commit the crime but you believe otherwise then
you are covered by the common law
v. Eggshell Skull Rule:
 Rule: The egg shell rule, or thin skull rule provides that the
defendant must accept the plaintiff as he finds him and remains
liable for the full extent of his damages, however extensive and
unforeseeable they might be.
f. (5) Defenses
i. (5)(A) Shopkeepers Privilege
 Rule: The following three must be met or else a shopkeeper will be
held liable for false imprisonment: (1) reasonable basis; (2)
reasonable period of time; and (3) reasonable manner for false
imprisonment.
 Explanation:
 Reasonable Basis [Probable Cause]:
a. crime occurred,
b. is occurring or about to occur and
c. an objective reasonable evidence
 Reasonable Period of Time:
a. Shopkeeper has a privilege to detain you for a temporary
period of time
 Reasonable Manner [Perception matters not the truth]:
a. Identify oneself
b. Explain oneself
c. Reasonable force used
d. Reasonable distance (passing sensors – if you pass you
basically give up your legal right to the authorities and have
therefore exceed the scope of authority)
ii. (5)(B) Reasonable Mistakes Perception
 (5)(B)(1) Private Citizens
 Rule: A private citizen has a privilege to legal authority only if
a felony was in fact committed (no reasonable mistake is
permitted as to the felony actually being committed) and that
there are reasonable grounds to believe the person in question
committed it
 Explanation: No defense for false imprisonment is allowed a
private citizen who reasonably, although mistakenly, believes a
felony is being committed when in fact no such felony as in
reality occurred.
 Exception:
a. Rule: Where a felony has in reality been committed, a private
citizen will not lose the legal authority privilege merely by
arresting the wrong person he reasonably (but incorrectly)
believes committed the crime. Like police officers, mistake
by a private citizen as to the identity of the perpetrator when a
felony has actually been committed is allowed
b. Explanation: Here, because a murder was indeed committed,
the privilege extends to falsely imprison by reasonable
mistake.
 (5)(B)(2) Police Officer
 Rule: when D is a police officer, a reasonable mistake will
preserve a defense on legal authority as to whether a felony was
actually committed
1. Explanation: Police officers are protected by reasonable
mistakes in perception as to whether a felony has been
committed or not.
 Although an officer’s judgment was mistaken, it was reasonable
and will relieve them of their liability.
iii. (5)(C) Lawful Arrest and Custodial Justification
 Rule: To determine whether the (1) imprisonment is justified and (2)
the threat against yourself or someone else.
 Explanation: The imprisonment is justified if there is a: (a) need to
protect the persons and property in his charge; (b) duty to aid in the
investigation and apprehension of those inflicting damage; (c)
manner and place of occurrence; and (d) feasibility and practicality
of other alternative courses of action and (2) whether there is a threat
to yourself or someone else
IV. Intentional Infliction of Emotional Distress
A. The defendant’s act must be extreme and outrageous in causing severe

emotional distress to the plaintiff.
1. IIED
a. (1)(A) Extreme and Outrageous
b. (1)(B) Severe Emotional Distress
c. (2) Intentionally or Recklessly
d. (3) D’s Act Must Cause Severe and Emotional Distress
f. (5) Defenses
i. (5)(A) First Amendment

1. IIED
a. Rule: The defendant’s act must be extreme and outrageous in causing severe
emotional distress to the plaintiff.
b. (1)(A) Extreme and Outrageous
i. Rule: Extreme and outrageous conduct is satisfied when the conduct
exceeds that of societal expectations.
ii. Explanation: In addition, there are three elements when the standard of
E&O is lowered: (1) when the defendant is aware the person has a
sensitivity and seeks to exploit it; (2) when the plaintiff has is in a
vulnerable class of plaintiffs (3) or there is a special relationship. The
courts may determine extreme and outrageous by looking at the
circumstance as a whole, based on the totality of the circumstances.
Restructure
iii. Example:
 Here, the special sensitivities that the mother of a handicapped or
deformed child would be expected to have about insults when D
intentionally or recklessly focuses his insults on the
handicap/deformed son might be enough to make an insult
actionable regardless of any special relationship.
 Slocum v. Food Fair Stores of Florida
 Siliznoff: Threats to bodily integrity, without actual physical
harm, are sufficient for IIED
 Slocum Foods: IIED must be “outrageous and extreme.” Insults
and indignities are insufficient for IIED.
iv. Conscious disregard of a known and unjustifiable risk
v. Although insulting language is usually insufficient to constitute
“outrageous conduct,” where common carrier-passenger inn
vi. Conduct may become outrageous because of the defendant’s knowledge
of the special sensitivities
vii.D must have a conscious disregard of a known and unjustifiable risk i.e.,
throwing a bomb into a playground full of kids (conscious awareness)
but you did it anyway or mishandling of corpse count as EOC when
people make jokes about someone that dies
viii. Insults, annoyances, petty offenses are not tortious because they are
not entirely beyond the pale of acceptability [There is a difference b/w
humiliating and embarrassing]
c. (1)(B) Severe Emotional Distress
i. Rule: Severe emotional distress constitutes distress that no reasonable
person could be expected to endure
ii. Explanation: One way to prove this is to show some kind of physical
manifestation of that distress. For instance, the plaintiff can suffer from
ulcers, heart attack, stroke and much more.
iii. SED has to be proven with indicia evidence that it was truly severe and
not pervasive
iv. THE EGG SHELL RULE
 Rule: Any time there is a pre-existing condition you should think
about causation and damages
 Explanation: Causation must be satisfied
v. Examples:
 Taylor v. Vallelunga
 Taylor (daughter/P) is claiming IIED
 The D should have intended to cause emotional distress
 Harris v. Jones
 IIED must be “severe” for liability to attach
 But footnote says the fact that Harris may have some pre-
existing condition doesn’t necessarily sever causation b/w the
D’s harm pg. 61
d. (2) Intentionally or Recklessly
i. Rule: To act intentionally means to act with desire (i.e. acting
purposefully), or knowing to a substantial certainty the consequences of
emotional distress will result.
ii. Explanation: Recklessly means to act when one is aware of a known
and unjustifiable risk of a high probability of emotional distress, and yet
this risk is disregarded and done anyway.
iii. Example:
 In Blakeley v. Estate of Shortal, D commits suicide by slitting his
throat in P’s kitchen. D, or his estate, is liable for intentional
infliction of mental distress because although P did not desire to
cause distress to P, or even know that distress was substantially
certain, he recklessly disregarded the high risk that distress would
occur.
iv. Transferred Intent:
a. Rule: If D attempts to cause emotional distress to X (or to commit
some other tort on him), and P suffers emotional distress, P usually
will not recover in the absence of an exception.
 Exception: 3rd Party Liability Bystander
 (1) D directs his conduct to a member of P’s immediate family
 (2) P is present; and
 (3) P’s presence is known to D
 Example: (Example: While P is present, and known to D to be
present, D beats up P’s father. If P suffers severe emotional
distress, a court will probably allow her to recover from D, even
though D’s conduct was directed at the father, not P).
 Restatement 2s. § 46(2)(b) – Traditional
 Rule: Under the Restatement, however, D is still liable even
though P was not closely related to P if P suffered bodily harm.
D is still liable even if D should have known (but in actuality
didn’t know) that P was present. If its immediate family, then
someone suffers ED
 Establish Whether:
 Contemporaneous sensory awareness counts: being in the same
place
 If its not an immediate family member you must be there to
witness it
e. (3) D’s Act Must Cause Severe and Emotional Distress
i. Rule: The act does not have to be the sole cause but just a substantial
factor.
a. (4) Sufficient Damages
i. Rule: Actual damages are required for IIED and nominal damages are
not permitted.
ii. Explanation: Physical harm need not be required, but it certainly
suffices to establish actual damages.
iii. Family members of P do not need to show physical harm to recover.
b. (5) Defenses
i. Rule: The First Amendments grants Americans the freedom of speech,
however, it prohibits speech that threatens public safety.
ii. Example:
 Larry Flynn in Hustler magazine was one of these leaders. We use satire to
poke fun at leaders. We have to feel the ability and the comfort to critique
our leaders and politicians etc. The idea that it was an insult, 1st
amendment, even if it is E&O 1st amendment covers it.
II. Trespass to Land
A. Trespass to land is the unauthorized act that results in an invasion of P’s possessor
interest in real property
1. Trespass to Land
a. (1) The Act of Trespassing
i. (1)(A) Unauthorized Act
ii. (1)(B) Invasion
 (1)(B)(1) Enters
 (1)(B)(2) Remains
 (1)(B)(3) Fails to Remove
iii. (1)(C) P’s Possessory Interest
b. (2) Requisite Intent to Trespass to Land
e. (5) Defenses

1. Trespass to Land:
a. Rule: Unauthorized act that results in an invasion of Plaintiff’s possessory
interest in real property
b. (1) The Act of Trespassing
 Rule: An unauthorized act is one that is taken without the
permission of or is inconsistent with the rights of the owner
ii. (1)(B) Invasion
 (1)(B)(1) Enters
 Rule: Enters the land or causes a thing or third person to do so
 Explanation: You step on another’s property
 Rule: Remains on the land after his privilege to be there has
expired
 Explanation: Staying on another’s land longer than the amount
allowed
 Rule: Fails to remove from the land a thing which he is under a
duty to remove
 Explanation: Leave something on another’s property when you
have an obligation to remove it & you don’t
 Example: Ex: If you’re drunk & stumble on to someone else’s
home trying to unlock the door thinking that was your own
home, you committed trespass to land. Volitional movement of
the muscles onto the land.
 Rule: One need not own the property, but merely have a right to
possess the property to have a possessory interest in order to have
standing to sue for trespass
c. (2) Requisite Intent to Trespass to Land
i. Rule: The intent required is merely to enter upon the land, cause the
entry, or remain.
ii. Explanation: D's good faith (but erroneous) belief that he has a right to
be there, or his reasonable mistake concerning title, right to possession,
consent, or privilege, is no defense.
iii. Therefore, this element would be met unless there was no volitional act
which does not seem to find support in the facts here.
iv. Good faith belief that one belongs even if mistaken constitutes intent.
v. Despite knowing to a substantial certainty that the plaintiff did not
provide permission to physically be on the property, the defendant
desires to remain on the plaintiff’s property.
vi. Trespass is intentional even when the D enters the land in the honest and
reasonable belief that it is his own.
vii.Considered transferred intent
i. Rule: Act must be a substantial factor in bringing about the invasion.
ii. Explanation: The defendant’s exclusive act of being on the plaintiff’s
property constituted in an invasion.
i. Rule: Nominal damages are cognizable under this tort in the absence of
other harm to the physical property or emotional damages, liability
attaches
ii. Explanation: D is required to pay the full value of the goods (not just
the amount of the use or damage, as in trespass to chattels), but gets to
keep the goods.
f. (5) Defenses
III. Trespass to Chattel
A. An unauthorized act that results in an interference (meddling) with Plaintiff’s

possessory right in a chattel.
1. Trespass to Chattel
a. (1) The Act of Trespassing
ii. (1)(B) Interference [meddling]
b. (2) Requisite Intent to Trespass to Chattel
e. (5) Defenses

1. Trespass to Chattel
a. Rule: An unauthorized act that results in an interference (meddling) with
Plaintiff’s possessory right in a chattel.
b. (1) The Act of Trespassing
 Rulae: Every unauthorized, and therefore unlawful interference, of
another’s personal property, is a trespass
 Explanation: An unauthorized act is one that is taken without the
permission of or is inconsistent with the rights of the owner
 Taken w/o consent
ii. (1)(B) Interference [meddling]
 Rule: Interference occurs when the defendant directly damages the
plaintiff’s chattel’s
 Interference is merely intermeddling or meddling with the property
of another
 Any slight interference will due
 Deals with minor interference of property
 Knocking over a cup
 Personal removal of property
 Remedy is to get out of bed or pick up cup
 Unlike trespass to land, trivial interference w/another’s personal
chattel is not actionable in tort
 Unlike conversion, the interference here need not be substantial.
 All that is required is that there be harm to the personal property
or diminution of its quality, condition, or value as a result of
another's use can also be the predicate for liability.
 An unprivileged use or other intermeddling with a chattel which
results in actual impairment of its physical condition, quality or
value to the possessor makes the actor liable for the loss thus caused.
Id.
 In such a case, the intermeddling is actionable even though the
physical condition of the chattel is not impaired.
 Rule: Rule: One need not own the chattel, but merely have a right
to possess the chattel to have a possessory interest in order to have
standing to sue for trespass (cell phone, car, purse, or anything the
individual personally owns).
 Explanation: Chattel is defined as personal moveable property or
property other than real property. Under common law, chattel had to
tangible, however, the modern day law recognizes intangible goods
as personal property (Data information, Stocks [ownership interest],
and email).
c. (2) Requisite Intent to Trespass to Chattel
i. Rule: Intent (desire or ktsc) that act will affect the chattel.
ii. Explanation: The defendant knew to substantial certainty that his act
would do the following: damage the chattel (property), deprive the
possessor of its use for a substantial period of time, or totally
deprived the chattel from the victim.
iii. Totally dispossess (deprives) the chattel from the victim
 Trespass to chattel also exists if the tortfeasor totally dispossesses
the victim of his chattel (stealing or wrongfully asserting
dominion and control over the property)
 This type of deprivation is sufficient interference to constitute the
tort even if the chattel is quickly recovered from the perp.
iv. Bad faith cannot exonerate the defendant for liability.
v. It is sufficient that the actor intends to damage or possess a chattel which
in fact is properly possessed by another.
vi. The Restatement would also include as trespass to chattel interference
with a chattel which results in injury to the possessor or injury to a
person or living thing in which the possessor has legally protected
interest
i. Rule: Act must be a substantial factor in bringing about the interference.
ii. Explanation: The defendant’s exclusive act significantly deprived the
owner of the use of his chattel (property).
i. Rule: Actual damage is required.
ii. Explanation: The deprivation of possession is regarded as damage in
itself, and no other is required. But where there is merely interference
with the chattel, as by laying hands on a horse or an automobile, the few
American decisions have held that the action cannot be maintained
without proof of actual damages.
iii. Are the damages here appropriate for a trespass to chattel action to
properly lie?
iv. Nothing has been destroyed or the full value rendered null, only an
inconvenience for a brief time.
v. But the interference is quite substantial even if the time is rather brief.
vi. Accordingly, she may have a better claim in conversion
vii.Return the chattel and pay for any inconveniences
f. (5) Defenses
IV. Conversion
A. Overarching rule for conversion is an Unauthorized act that results in a substantial

interference with Plaintiff’s possessory right in a chattel to such a degree that the
Defendant should be required to pay in full.
1. Conversion
a. (1)(A) Unauthorized Act
b. (1)(B) Substantial Interference
i. (1)(B)(1) What Constitutes a Substantial Interference?
 (1) Acquiring Possession
 (2) Damaging or Altering
 (3) Receiving
 (4) Disposing
 (5) Mis-delivering
 (6) Refusing to Surrender
ii. (1)(B)(2) Limitations
 (1) Extent and Duration
 (2) Assert Right in Fact
 (3) Good Faith
 (4) Resulting Interference
 (5) Harm to Chattel
 (6) Deprivation is permanent
c. (1)(C) P’s Possessory Interest
d. (2) Requisite Intent to Affect Chattel
g. (5) Defenses

1. Conversion
a. Rule: Unauthorized act that results in a substantial interference with
Plaintiff’s possessory right in a chattel to such a degree that the Defendant
should be required to pay in full.
b. (1)(A) Unauthorized Act
a. Rule: An unauthorized act is one that is taken without the permission of
or is inconsistent with the rights of the owner.
c. (1)(B) Substantial Interference
i. (1)(B)(1) The following are factors must be met in order for substantial
interference to be satisfied?
 (1) Acquiring Possession
 Example: Stealing the chattel
 (2) Damaging or Altering
 Example: Intentionally running over an animal and killing it
 (3) Receiving
 Example: Obtaining possession after a purchase from a thief
 (4) Disposing
 Example: Bailee wrongfully sells the chattel
 (5) Mis-delivering
 Example: Delivery to wrong person by mistake so that the
chattel is lost
 (6) Refusing to Surrender
 Example: Bailiff refuses to return the chattel
ii. (1)(B)(2) Limitations
 Rule: Even though conversion is no longer restricted to lost
property, courts still generally limit protection to tangible
property unless the intangible property has distinct factors in
determining the seriousness of the interference:
 (1) Extent and Duration of the actor’s exercise of dominion or
control;
 (2) The actor’s intent to assert a right in fact inconsistent with the
other’s right of control;
 (3) The actor’s good faith;
 (4) The extent and duration of the resulting interference with the
other’s right of control;
 (5) The harm done to the chattel;
 (6) The inconvenience and expense caused to the other.
 As long as the deprivation is permanent (although made in good
faith) there is conversion
iii. (1)(B)(3) Invasion
 (1)(B)(1) Enters
d. (1)(C) P’s Possessory Interest
b. Rule: One need not own the chattel if there is a right to possess or use
the chattel.
c. Explanation: Chattel is defined as personal moveable property or
property other than real property. Under common law, chattel had to
tangible, however, the modern trend, recognizes intangible property
can suffice for chattelJurisdictional SPlit
d. Example: Data info is intangible property; Stocks (ownership interest);
and Email
e. (2) Requisite Intent to Affect Chattel
i. Rule: Intent (desire or ktsc) that act will affect the chattel.
f. (3) Causation between D’s Act and P’s Harm
i. Rule: Act must be a substantial factor in bringing about the interference.
ii. Damages must be substantial to justify full replacement compensation.
g. (4) Sufficient Damages
i. Rule: D is required to pay the full value of the goods (not just the
amount of the use or damage, as in trespass to chattels), but gets to keep
the goods.
ii. Explanation: Damages must be substantial to justify full replacement
compensation.
h. (5) Defenses
V. Defenses
A. Consent Doctrine
1. Rule: Two types of consent are express and implied. Consent is willingness in
fact for conduct to occur. It may be manifested by action or inaction and need not
be communicated to the actor. If words or conduct are reasonably understood by
another to be intended as consent, they constitute apparent consent and are as
effective as consent in fact.
2. Analytical Framework:
a. (1) Express
i. (1)(A) Apparent
b. (2) Implied
i. (2)(A) Apparent
ii. (2)(B) Consent by Law
iii. (2)(C) Competency
iv. (2)(D) Capacity
v. (2)(E) Obligations
c. (3) Conduct v. Consequences
i. (3)(A) Fraud
ii. (3)(B) Duress
iii. (4) Illegality or Illegal Acts
 (4)(B) Minority Rule
3. Framework Broken Down:

a. Rule: Two types of consent are express and implied. Consent is willingness
in fact for conduct to occur. It may be manifested by action or inaction and
need not be communicated to the actor. If words or conduct are reasonably
understood by another to be intended as consent, they constitute apparent
consent and are as effective as consent in fact.
b. Explanation: Consent exists to protect the rights of the plaintiff and defendant.
The plaintiff must give the defendant permission to perform an act. Also,
consent protects the defendant from the plaintiff making false accusations
about not consenting.
c. (1) Express
i. Rule: Written or very clearly spoken consent and if you don’t have
that then you have implied?
ii. Explanation: For express consent to be effective, the person must know
what they are getting themselves into
iii. If the person changes their mind, then it is no longer consent
iv. (1)(A) Apparent:
 (1) P’s conduct (O'Brien)
 (2) Custom
 O’Brien v. Cunnard S.S. Co.
 Court recognizes that this is consent
 Express = written or very clearly spoken consent and if you don’t
have that then you have;
v. Example:
 Hackbart v. Cinncinatti Bengals
 When there is malice (intent beyond what’s required) then
damages are allowed
 Even in the violent game of football, there are still rules of the
game
 The type of intent of going to the back of the head battery has
been done
 Exceeds the scope of consent
 Conflicting inside the game out outside the game
d. (2) Implied
i. Rule: Consent is implied when, under the circumstances, the conduct of
the individual reasonably conveys consent.
ii. Explanation: If A gives B a friendly greeting every time B walks across
her property, A’s lack of objections implies consent
iii. (2)(A) Apparent:
 (1) P’s conduct (O'Brien)
 (2) Custom
 Can intent be implied by your behavior?
 O’Brien v. Cunnard S.S. Co.
a. Court recognizes that this is consent
b. Implied consent
i. Her outside actions show implications, she did not
intend to consent
ii. BE CAREFUL ABOUT YOUR ACTIONS
iv. Example:
 Hackbart v. Cinncinatti Bengals
 When there is malice (intent beyond what’s required) then
damages are allowed
 Even in the violent game of football, there are still rules of the
game
 The type of intent of going to the back of the head battery has
been done
 Exceeds the scope of consent
 Conflicting inside the game out outside the game
v. (2)(B) Consent by Law [Exception for emergency medical
treatment]:
 Rule: Automatic consent is given when a patient is in the hospital in
a life threatening condition, unless for whatever reason the patient
doesn’t want help or to be saved
vi. (2)(C) Competency
 Rule: Deals with mental illness or the ability to voluntary and
knowingly consent i.e., proper psychiatric state of mind
 Explanation: IF guy comes in and his hand is off and his life is
threatened and guy says don’t attach my hand you ma
vii.(2)(D) Capacity
 Rule: Children under the age of 18 and people who are intoxicated
cannot consent
viii. (2)(E) Obligations:
 Rule: make sure the person is of age, make sure the person has no
religious obligations, make sure the person is sane
1. Transferred Intent:
a. Intent may transfer as between:
i. (a) torts
ii. (b) victims
2. (3) Conduct v. Consequences
a. Fraud or Duress Negate Consent
b. (3)(A) Fraud
 Rule: Consent is invalid if it is induced by fraud that misrepresents
an essential aspect of the interaction
 Explanation: If critical info is not disclosed to person A because
person B w/held it, fraud exists
c. (3)(B) Duress
 Rule: Consent procured under physical threat is invalid
 Explanation: However, as a general rule economic pressure, while
coercive, does not negate consent
 Given situational pressures, much consent is to some degree not
totally voluntary, in extreme instances, situational duress can negate
consent
d. (3)(C) Illegality or Illegal Acts
 Rule: Majority rule holds that a person cannot consent to a criminal
act; consent is always invalid
 Explanation: If A and B are engaged in an illegal boxing match,
the participants’ consent, which otherwise prevent liability for
battery, is invalidated
 Minority Rule (Restatement) holds that a person can consent to a
criminal act for purposes of tort liability
1. Mohr v. Williams:
a. Technical battery
b. Its technical in a sense that he didn’t desire to cause
harmful or offensive contact
c. But he operated on the wrong ear and the court
recognizes that this is a technical battery
d. Although intent is not there, it is technical
i. Read that language in to the act automatically
ii. Lack of consent that gives rise to the cause of
battery
e. Recognized as a technical battery because it is
unlawful, unpermitted touching
f. NO malpractice
g. Sued under battery because the surgery was successful
h. Can say the family physician is there to give implied
consent
 Relates to battery
 Where D’s act against P is a criminal act, courts are split.
 The majority rule is that P’s consent is ineffective if the act
consented to is a crime.
 Example:
1. P and D agree to fight with each other. In some states, each
may recover from the other, on the theory that consent to a
crime –such as breach of peace – is ineffective.
 The Rest. Differs in approach.
1. Restatement says claims are barred it’s on them
2. Minority rule says claims are effective there is batter claim
3. Majority: can collect damages for a batter claim will
deter people
 Policy Considerations
1. Some commentators note that the Restatement rule tends to
discourage illegal activity more. Is that necessarily true?
However, the majority rule might have created an incentive
for the winning fighter to pull back instead of risking a
lawsuit for beating his opponent up too much
 Example:
1. De May v. Roberts
a. Woman did not consent to the doctor’s helper being
there
b. Notes: 6 and 7
c. Consent induced by fraud is not consent
d. if someone is under a false impression, it is not a fully
informed consent (misrepresentation)
B. Self-Defense
1. Defendant is privileged to commit an intentional tort if Defendant uses only the
amount of force that reasonably appears necessary to repel imminent harm
a. (1) Harm must be imminent
i. (1)(A) Preemptive Strike
ii. (1)(B) Retaliation
b. (2) Reasonable amount of force
i. (2)(A) Excessive
ii. (2)(B) Deadly
c. (3) Reasonable mistake will not negate defense
d. (4) Does Defendant have duty to retreat?
i. (4)(A) Majority
ii. (4)(B) Minority
iii. (4)(C) Special Case: Exception to Minority
e. (5) Self-Defense and transferred Intent
f. (6) Initial Aggressors Self-Defense

a. Self-Defense
i. Rule: Defendant is privileged to commit an intentional tort if Defendant
uses only the amount of force that reasonably appears necessary to repel
imminent harm
ii. Explanation: Self-defense, both in tort and criminal law, constitutes a
defense which can justify and therefore negate liability. If P truly
believes that they are about to get attacked, then P has the right or
“privilege” to defend himself
B. (1) Harm must be imminent
1. Rule: Self-defense must be in response to an immediate threat of harm
2. Explanation: To defend oneself, the threat/action must be immediate and
not avoidable, thus you must defend yourself
3. (1)(A) Preemptive Strike:
a. Rule: The threat must be immediate and a preemptive strike is not
justified under common law rules.
b. Explanation: Permitting preemptive strikes would accelerate violence in
instances where the use of force could otherwise be avoided.
2. Some cases where A is entrapped but the threat is not immediate (see below)
but this defense is not always accepted
i. Prison cell, abusive relationships etc.
4. (1)(B) Retaliation
a. Rule: Retaliation against the aggressor is not self-defense
b. Explanation: Once the aggressor falls back, the aggresse cannot fight
back because the threat is no longer imminent
C. (2) Reasonable amount of force (Excessive and Deadly)

1. Rule: The rule provides that since person A has a privilege to use so much
force as reasonably appears to be immediately necessary to protect herself
against imminent physical harm threatened by the intentional or negligent
conduct of another.
2. Thus, if person A did have the right to defend herself, she can only use
reasonable force to repel the attack.
3. First, under the circumstances presented, was the defendant privileged to use
some kind of force to defend himself?
4. If the answer to this question is in the affirmative, then you must proceed to
ask whether he had the privilege to use the degree of force that she
employed?
5. The D cannot use excessive nor deadly force if the initial aggressor’s force
is not excessive nor deadly basically aggresses amount of force must
match the initial aggressors amount of force
6. Proportionality rulethe action must be proportioned to the threat perceived
7. Reasonable person must be situated to the aggressor
8. Excessive and Deadly Force
1. If a person believes they will die/suffer really bad bodily harm, then that
person can inflict serious bodily harm
9. Below are some examples of what excessive and deadly force are:
10. (2)(A) Excessive Force
a. Rule: D has a privilege to use so much force as reasonably appears to be
immediately necessary to protect himself against imminent physical
harm threatened by the intentional or negligent conduct of another.
b. Explanation: D may use force likely to inflict death or serious bodily
harm only when the following are met:
i. (a) He reasonably believes that he is in danger of similar harm, and
ii. (b) He is not required to retreat or escape
 amount of force that is necessary or reasonable appears to be
necessary to repel the attack
 reasonable mistake will not negate the defense
 this defense will survive even if you were mistaken, as long
as you were reasonable
11. (2)(B) Deadly Force
a. Rule: You can only use deadly force to counter deadly force.
b. Explanation: Circumstances will vary: “Detached reflection cannot be
demanded in the presence of an uplifted knife.”
c. Juries will take into account that your behavior came about during an
emergency and will judge you accordingly.
D. (3) Reasonable mistake will not negate defense

1. Rule: The law thus does not require that person A possess perfect
judgment, but only reasonable judgment, which may be understandably
imperfect when under attack.
2. Explanation: All the law demands is that judged from a reasonable person
vantage point to one similarly situated in circumstances that person A faces,
whether a reasonable person would have reasonably believed he or she
would be under attack.
3. The privilege exists even when D reasonably but mistakenly believes that
self-defense is necessary.
4. Mistake is allowed, if reasonable
5. The reasonableness of D’s belief is judged by the objective standard of the
reasonable person of average courage.
6. This defense will survive even if you were mistaken, as long as you were
reasonable
E. (4) Does Defendant have duty to retreat?

1. Rule: There is no duty to retreat in all cases except when retreat is
feasible in which case you can still stand your ground on majority rule but
restatement and minority rule you cannot stand your ground
2. Explanation: D’s deadly force used /or when retreat feasible = split:
majority: no duty to retreat minority/Rest.: duty to retreat
1. JURISIDICTIONAL SPLIT (107)
a. (4)(A) Majority position:
i. Rule: Does not require person to retreat and assumes person has the
legal right to be present or to proceed
ii. Explanation: Right and dignity of the individual can be defended
w/deadly force
b. (4)(B) Minority position/Restatement:
i. Rule: Requires retreat where serious bodily injury or death would
otherwise be required in self-defense
ii. Explanation: If person A is in danger of serious bodily injury or
death, “retreat” is necessary – If you’re about to die why would you
retreat if you can help it?
iii. Does not require retreat of dwellings, P must believe retreating is not
an option
c. You see as you’re walking down the street that a young man is grabbing
a bag from the lady ready to rob her and you want to be the kind person
as you come to the aid of the lady but
3. (4)(C) Special case: (exception to minority rule)
a. Rule: No duty to retreat if attacked in dwelling by non-resident
b. Explanation: If you are in your own home, you have no obligations to
retreat from deadly force in any jurisdiction.
c. In some jurisdictions, there are so-called “make my day” laws that let
you use deadly force burglars and other trespassers.
d. There is no obligation to retreat if there is a non-deadly force; you may
use non-deadly force in response.
e. There is an obligation to retreat if you’re confronted with deadly force
outside your home, but the circumstances may vary.
F. (5) Self-Defense and Transferred Intent

1. Rule: Transferred intent may apply between selected torts at common law.
2. Explanation: If you are lawfully exercising self-defense and you attack the
wrong person you are not liable
3. Transferred to the innocent bystander
4. Protected from harm to third parties
G. (6) Initial Aggressor’s Self-Defense

1. Rule: The rule provides that even an initial aggressor may be given the right
to self-defense under certain circumstances where the initial aggressor
withdraws from the confrontation, and communicates this withdrawal to the
other party, he regains the right to self-defense.
2. Counterargument: If it is unclear whether a reasonable person would
interpret the attack to be over, and there is no unequivocal communication to
the contrary, person A could reasonably perceive the attack to continue
which is why she may have charged the fan.
3. Initial aggressor can become the victim
a. Some jurisdictions require the retreat
b. If the original victim retaliates
C. Defense of Others
1. Rule: Defendant is privileged to commit an intentional tort if Defendant uses
only the amount of force that reasonably appears necessary to repel imminent
harm to a third person.
a. (1) Good Samaritan
i. (1)(A) Limited Privilege Rule
ii. (1)(A)(1) Majority
iii. (1)(A)(2) Minority

a. Defense of Others:
i. Rule: Defendant is privileged to commit an intentional tort if Defendant
uses only the amount of force that reasonably appears necessary to repel
imminent harm to a third person.
ii. (1) Good Samaritan:
 Rule: whenever the actor reasonably believes a 3rd party is entitled
to exercise self-defense
 Explanation: If the intervener truly believes the aggresse needs
assistance, the intervener has the right to intervene
 (1)(A) Limited Privilege Rule
 (1)(A)(1) Majority: any mistake negates defense
 (1)(A)(2) Minority/Rest: reasonable mistake doesn’t negate
defense
a. If you’re walking down the street and you see a man taking a
woman’s purse, how could the party react?
 Some courts adhere to the rule that the privilege to use force in
defense of a third person exists only when the person being
defended was privileged to use force
 The intervener must stand in the “shoes of the person” being
protected
 Aggresse must be able to defend themselves if not, the
intervener cannot lawfully intervene
D. Defense of Property:
1. Rule: D is privileged to commit an intentional tort if D uses only the amount of
force that reasonably appears necessary to protect D’s real or personal property.
a. (1) Reasonable amount of force
b. (2) Generally, any mistake negates defense
c. (3) Habitation
i. (3)(A) Castle Doctrine
ii. (3)(B) Mechanical Devices

a. Defense of Property
i. Rule: D is privileged to commit an intentional tort if D uses only the
amount of force that reasonably appears necessary to protect D’s real or
personal property.
ii. Explanation: The owner must first make a verbal demand that the
intruder stops, unless it reasonably appears that violence or harm will
occur immediately, or that the request to stop will be useless.
iii. (1) Reasonable amount of force:
 Rule: Force that would result in death or serious bodily injury is
generally not reasonable in defense of property.
 Explanation: Cannot use deadly force against protection of
property, but allowed to use defense against protecting yourself or
protecting others
 ALL ABOUT HOW THE REASONABLE PERSON WOULD
PERCEIVE THE SITUATION.
 Example: If A asked B to leave the property and A reasonably
believes B will not leave, then A can push B off his property even if
later on A finds out B would have left the property at verbal request
 (2) Generally, any mistake negates defense:
 Rule: If D’s mistake is about whether force is necessary, D is
protected by a reasonable mistake
 Explanation: Unlike self-defense, a reasonable mistake will not
excuse the force that is directed against an innocent party (can
result in battery)
iv. (3) Habitation:
 The Second Restatement: Authorizes the use of deadly force when
needed to prevent any breaking and entry into a dwelling and leaves
open, in a caveat, whether deadly force could be used to prevent
similar intrusion in other building as well as under certain
circumstances
 Explanation: D privileged to use deadly force to prevent any
unlawful break in to D’s dwelling.
 Common Law: Protects the right to defend oneself in a dwelling
more than ordinary property
 (3)(A) Castle Doctrine:
 Rule: D only privileged to use deadly force to prevent break in
if occupants’ safety is threatened.
 Explanation: Deadly force used against person B by person A
to protect their home is allowed if person B is a danger
 Questions to Consider:
i. But how do you know if you are in danger?
ii. Maybe “how would the reasonable person feel?”
iii. Look at history of person like in Goetz
 Examples:
i. D reasonably believes that P is a burglar. In fact, P is a
friend who has entered D’s house to retrieve her law book,
without wanting to bother D. Even non-deadly force by D
will not be privileged.
ii. When the person is home and the burglar is breaking in then
you have the right to protect yourself
iii. However, if the burglar is trying to get something tangible
from the home, then the home owner cannot use deadly or
excessive force
iv. Joe HornExonerated. In TX you are allowed to
protect your property with deadly force. Tried to say
they came on his property. Sentiment in Texas was like
the Goetz case
ii. (3)(B) Mechanical Devices:
 Rule: The use of mechanical devices intended to inflict serious
injury or death to protect property is severely discouraged by the
courts
 Explanation: Such force, even when inflicted personally by an
individual defending property, would be unlawful, unless another
privilege, such as the right of self-defense against deadly force, was
implicated
 Mechanical devices include, but not limited to, the following:
 Guns, spring guns, etc.
E. Recovery of Property
1. Rule: D is privileged to use reasonable force to recover property when in hot
pursuit of wrongdoer. Recognizes when something is taken from you can take it
back
a. (1)(A) Fresh pursuit [or hot pursuit]
b. (1)(B) Generally required to make demand
c. (1)(C) Reasonable amount of force
d. (1)(D) Any mistake negates defense
i. (1)(D)(1) Shopkeepers Privilege

a. (1) Recovery of Property
i. Rule: D is privileged to use reasonable force to recover property when in
hot pursuit of wrongdoer. Recognizes when something is taken from you
can take it back
ii. Explanation: When a person has something long enough they feel like
they are entitled to it
b. (1)(A) Fresh pursuit [or hot pursuit]
i. Rule: Person is permitted to retrieve property so long as they are going
after the right person. However, if the person can’t retrieve the property
immediately [no longer than 1-2 days], they are disturbing the peace
c. (1)(B) Generally required to make demand
i. Rule: Party must say something along the lines of “Please give me back my
property” before trying to retrieve it
d. (1)(C) Reasonable amount of force
i. Rule: It is not ok to use force to cause severe harm, just what’s necessary
for recovery.
e. (1)(D) Any mistake negates defense
f. Examples:
i. D extended credit to P on the sale of a stove. D then discovered that P
misrepresented his assets & credit and that he was financially
irresponsible. D’s rushed out in hot pursuit of P and they took the stove
away from him by force. His resistance was such that the D’s used
violence and applied force to his person w/ “great rudeness & outrage.” P
drew a knife and he was forcibly held by one of the D’s while the other
took possession of the stove. To obtain possession of the property in
question no violence to the person of the P is necessary, or required,
unless from his resistance. (Hodgenden v. Hubbard)
ii. (1)(D)(1) Shopkeepers Privilege:
 Rule: Reasonable amount of time to detain a person for
shopkeeper’s privilege is up to 4 hours based on a reasonable ground
for suspicion i.e., can’t just have a hunch that they stole, and in a
reasonable manner [no excessive force].
 Explanation: Must have subjective information that shows they
took something: customer observed you take something or video
surveillance.
 Ex: security officer in plain clothes tells old man to go w/him to
the back of the store. Old Man has a heart attack and dies on the
way to the back.
 Example:
 P left the D’s MI store after making several purchases. A private
policeman on duty called her to stop as she was walking to her
car in the parking lot. He motioned to the P to return towards the
store and when she had done so, he told her that someone in the
store told him that she put three pieces of costume jewelry in her
purse w/o having paid for them. P denied she had taken anything
unlawfully but policeman told her he wanted to see the inside of
her purse. P emptied the contents of her purse into her husband’s
hands. P showed him receipts of the things she had purchased
and that satisfied the officer that she had not committed
larceny.There is shopkeeper’s privilege to detain a customer
for investigation if the shopkeeper has reasons to suspect that a
customer has stolen goods. (Bonkowski v. Arlan’s Department
stores)
F. Necessity
1. Rule: Necessity is s defense to liability for unlawful activity where the conduct is
unavoidable and is justified by preventing the occurrence of a more serious harm.
2. Analytical Framework
a. (1)(A) Public Necessity [Complete Defense]
b. (1)(B) Private Necessity [Incomplete Defense]
3. Framework broken Down:
a. (1) Necessity
i. Rule: Necessity is a defense to liability for unlawful activity where the
conduct is unavoidable and is justified by preventing the occurrence
of a more serious harm.
b. (1)(A) Public Necessity [Complete Defense]:
i. Rule: Public necessity allows the appropriation or injury of an
innocent party’s property to avoid more substantial public harm.
ii. Explanation: Public necessity consists of some sort of damage to
property to avoid a more substantial the innocent party or to the
public.
iii. Where property is trespassed upon or destroyed in order to prevent an
imminent public disaster, no liability attaches for harm done to the
property
 Under Rest. 2d of torts, sec 196, D is privileged to:
 Enter land of another if it is actually necessary to avert an
imminent public disaster or
 If the actor reasonably believes it to be necessary for the
purpose of averting an imminent public disaster.
 Public Necessity is an absolute defense to trespass to land,
trespass to chattel, battery (how is it a defense to battery)
 Examples:
a. Break house down b/c necessary to save a village. Then fire
goes in the order direction. It was reasonable at the time
b. D blew up Surocco’s P house and property during a fire. D
blew up the building to prevent the fire from destroying a
great deal of property/land. At the time the building was
destroyed, P was engaged in removing his property and could
have succeeded in removing all of his property if he had not
been prevented from doing so. The law recognizes a
privilege to damage property to avoid a threatened
disaster when necessary in certain circumstances.
Blowing up of the house was necessary, as it would have
been consumed had it been left standing. The right to
destroy property is justified if it is done so to prevent a
fire or disaster from proliferating and it is done so in the
good faith belief that it is a necessity. (Surocco v. Geary)
 Public necessity affects the public interest
 Any private citizen may exercise necessity
 The D can destroy your property even if it appears to be necessity
and if you try to stop them from coming into your house to burn it
down you would be in the wrong
 Policy:
 Despite compensations given in private necessity, an innocent
party should not be compensated because person A should not
be deterred by potential liability from acting for the public good
 People wouldn’t want to pay out of pocket for a good deed
 Strong argument that the gov’t should pay the innocent party
instead of burdening the private individual
c. (1)(B) Private Necessity [Incomplete Defense]:
i. Rule: In private necessity, an individual has the privilege to interfere
with the property right of another to avoid a greater harm, but must
compensate the plaintiff for the interference.
ii. Explanation: Person A can intervene and help out the innocent party’s
property, however, person A will be held liable for intervening.
However, under public necessity, person A will not be held liable
iii. Pay for the harm you cause, you can take advantage of someone else’s
property to protect your own property, but you must pay for the harm
caused.
iv. This rule forces people to make an economically efficient decision.
v. Actors will balance the value of their own property that they are
protecting w/the harm that will be caused to another person’s private
property.
vi. The rule is that you mustn’t harm someone else’s property just to
gain for yourself.
vii.Private necessity of avoiding destruction or damage to one’s property
gives rise to a privilege to invade the property of another, but this
privilege is limited to entry and compensation must be made for any
damage resulting from it.
viii. Example:
 The Steamship Reynolds, owned by Lake Erie Transport Co. (D)
was moved to Vincent’s (P) dock to discharge the cargo on board.
While unloading the steamship a storm developed and instead of
cutting the ship loose from the dock, the crew kept it tied up. During
the storm the steamship was lifted and thrown against the dock
several times resulting in damage to the dock to the amount of $500.
Court says this was private necessity. D used P’s property to save his
personal property (the boat) at the expense of the P’s dock. D will
be held responsible for the damages to the docket. This is not a
defense to trespass to chattel and not conversion. Private necessity
of avoiding destruction or damage to one’s property gives rise to a
privilege to invade the property of another, but this privilege is
limited to entry and compensation must be made for any damage
resulting from it.
d. (1)(C) Extras:
i. Intentional Injury and Killings:
 If fair battery had been used, the killing of some to save more would
be justified
 You are allowed to kill 1 person to save the life of millions so to
speak
 Trespass to land occurs when shooting something on someone else’s
land. You have infinite rights above and below your land.
 Why would we allow a person to claim $1?
 To persuade people to prevent acting in a certain way. Policy
standpoint: discourage people from shooting over people’s land.
 Examples:
 Debris/junk from my lawn goes on to neighbor’s lawn and
didn’t clean it up. Liable for trespass to land? Yes, could be
held liable to trespass for failing to remove an object from
another’s land when you are liable to remove it. Must remove
that debris b/c you have the duty to do so.
 Nuisance claims deal with noise/order but no physical contact to
the land. Let’s say the loud noise caused windows to shatter.
Now this is a trespass to land claim because the vibration itself
does not cause a trespass itself only when the vibration caused
glass to shatter.
I. Negligence
II.
A. Analytical Framework:
1. Negligence requires the satisfaction of the following elements: (1) duty; (2)
breach; (3) causation; (4) damages; and (5) defenses.
2. (1) Duty
(1)(A) To whom is a duty owed to?
(1)(A)(1) Cardozo (Majority)
(A) Was P a foreseeable P?
(B) What is the foreseeable zone of danger?
(C) Was P within the foreseeable zone of danger?
(1)(A)(2) Andrews (Minority)
(1)(B) Applicable Standard of Care
(1)(B)(1) RPP
(A) Mental Disability
*Adult
*Children
(B)Physical Disability
(1) Intoxication
(C) Emergency
(D) Children
(D) Industry Custom
(1) Must be widely adopted
(2) Shows what is reasonable or negligent behavior
(3) Relevant to D’s Act
(E) Malpractice
(F) Affirmative Duties
(F) Special Relationship
(F)(1) Tarasoff Duty
(G) Nonfeasance
(G)(1) Nonfeasance Exceptions
(G)(2) Modern Trend
(F) NIED
(1) Direct Test and Bystander Test
(A) Impact Test
(B) Physical Manifestation Test
(C) Zone of Danger
(2) Thing v. La Chusa Bystander Test
(A) Closely Related
(B) Present
(C) Emotional Distress
(G) Landholders
(1) Adjacent Public Ways
(2) Deviations from Public Ways
(3) Artificial Conditions
(a) Lessor (Landlord) – Lessee (Tenant)
(i) Common Area
(ii) Voluntary Repairs/Negligent Voluntary Repairs
(iii) Latent Defects
(iv) Public Admissions
(4) Entrants Categorical Distinctions (Minority Approach)
(a) Discovered Trespassers
(i) Exception: Frequent Trespassers
(b) Undiscovered Trespassers
(c) Child Trespassers
(d) Invitees
(i) Business Visitor or Public Invitee
(ii) Duty to Search
(iii) Duty to Warn of Obvious Dangers
(iv) Duty to Fix
one big IRAC
(e) Licensee
no should have known
(i) Firefighters Rule (Official Visitors Doctrine)
(5) Rowlands v. Christian (Majority Approach)
3. (2) Breach of Duty
a. (2)(A) Learned Hand Formula
i. (2)(A)(1) How expensive would precuations be?
ii. (2)(A)(2) How likely is it that D [insert facts] would result in P’s
injuries?
iii. (2)(A)(3) How big of an injury did it cause?
b. (2)(B) Res Ipsa Loquitor
i. (2)(B)(1) The accident does not occur in the absence of negligence
ii. (2)(B)(2) The D had exclusive control over the instrumentality
iii. (2)(B)(3) The P did not contribute to her own injureies
iv. Jurisdiction
 (1) Permit a jury infer D acted unreasonable
 (2) Find or reject negligence if D rebuts the inference
 (3) Completely shift the burden from P to the D to prove the
absence of negligence
c. (2)(C) Negligence Per Se
i. (2)(C)(1) Type of Harm
ii. (2)(C)(2) Class of Persons
iii. (2)(C)(3) Minority
iv. (2)(C)(4) Exception
4. (3) Causation
a. (3)(A) Factual Causation
i. (3)(A)(1) But for Test
ii. (3)(A)(2) Substantial Factor Test
iii. (3)(A)(3) Summer v. Tice
b. (3)(B) Proximate Causation
i. (3)(B)(1) The remoteness in space and time between D’s act and P’s
harm
ii. (3)(B)(2) The likelihood that P’s harm would result from D’s act
iii. (3)(B)(3) Intervening causes
(1) Third Persons
(2) Weather
(3) Self-Inflicted Harm
(4) Acts by rescuers
(5) Mitigation
(6) Disease or subsequent injuries resulting from the impairment
of P’s health caused by the original injuries
(7) Criminal Conduct/Intentional Torts
(A) Superseding Causes
5. (4) Damages
a. (4)(A) General Damages
b. (4)(B) Special Damages
c. (4)(C) Punitive Damages
d. (4)(D) Eggshell Doctrine
6. (5) Defenses
a. (5)(A) Assumption of the Risk
b. (5)(B) Contributory Negligence
c. (5)(C) Comparative Negligence
d. (5)(D) Statute of Limitation
e. (5)(E) Mitigation of Damages
B. Analytical Framework Broken Down:

C. Negligence requires the satisfaction of the following elements: (1) duty; (2)
breach; (3) causation; (4) damages; and (5) defenses.
D. (1) Duty
(1) (A) To whom is a duty owed to?
a. Rule: P must prove that a duty was owed to her by a preponderance of
evidence to establish a prima facie case. To determine whether P is owed a
duty, the Cardozo (majority) approach and the Andrews (minority)
approach must be examined.
b. This step addresses the question of who is owed a duty
c. Whether D owes a duty or not
d. If no duty owed to the P, then P cannot recover
e. (1)(A)(1) Cardozo (Majority)
i. (A) Was P a foreseeable P?
1. Rule: The following elements below, (1)(a) and (1)(b), must be established
to prove whether P is within the foreseeable zone of danger and whether D
owes P a duty of care.
2. Explanation: D only owes a duty to persons within the foreseeable zone of
danger. To understand whether a duty is owed to P, the following sub-
elements requires a determination.
ii. (B)What is the foreseeable zone of danger?
1. Rule: The foreseeable zone of danger is the area where harm is most likely
to occur based on D’s conduct.
2. The foreseeable zone of danger is the area where harm is likely to occur
based upon D’s conduct
3. The zone of danger can be narrow or expansive
4. Example:
a. Narrow:
i. Person accidentally drops a hammer on a leveled sidewalkdanger
zone is the sidewalk
ii. Person accidentally drops marbles on a sidewalk that roll 8 ft.
awaydanger zone is 8 ft. away
iii. Radio Station Hypo:
1. What happened? People were invited to chase after a van in
order to obtain Disney tickets
2. Where D is speeding in his car and physically injures P, another
motorist, courts concur that D owes a legal duty to P
b. Expansive:
i. Person A, while flying a transport plane, accidentally drops
sand and cement particles while flying over the town of
XDanger is wherever the particles are landing as the plane
is flying
ii. Person A accidentally releases a wrecking ball that swings
and crashes into its neighbors buildingpeople in the
building might be harmed; people below might be harmed
from the falling debrisDanger zone would be the distance
b/w point A and point B and also the damage done to the
building and the people in that building
iii. Radio Station Hypo:
1. What happened? People were invited to chase after a van in
order to obtain Disney tickets
2. Area likely where the van is traveling although there could be
arguments if the regional scope is the foreseeable scope
3. Area of dissemination becomes an invitation to enter into a danger
zonearea of broadcast was the foreseeable zone of danger
iii. (C) Was P within the foreseeable zone of danger?
1. Rule: In order for D to owe P a duty of reasonable due care as a foreseeable
P, P must be within the foreseeable zone of danger.
2. If P is within the foreseeable zone of danger, then P owes D a duty
3. If P is not within the foreseeable zone of danger, then D does not owe P a
duty
iv. Summary:
1. Duty: Owed only to foreseeable P’s
2. Liability: Limited to those in foreseeable zone of danger
3. Focus: On fairness to the D
4. Deterrence: Fair only when D should have known their behavior is
dangerous to P
(2) (1)(A)(2) Andrews (Minority)
i. Is a duty owed to Susan under the Andrews approach?
1. Rule: Under the Andrews approach, a duty is owed to anyone who suffers
injuries as a result of negligent conduct to someone and thus P can recover if
D did not conform with the standard of care.
2. Anyone directly harmed by D’s negligence, D owes a duty to
ii. Summary:
1. Duty: Owed to everyone harmed by D’s negligence
2. Liability: Foreseeable zone of danger doesn’t matter
3. Focus: On fairness to P
4. Deterrence: Fair when D is negligent, no matter what P’s distance is
(1)(B) Applicable Standard of Care
b. Rule: Must determine (2)(a) what is the applicable standard of care;
and (2)(b) what that standard of care actually requires D to do or
refrain from doing based upon the RPP who is similarly situated to the
circumstances when D [insert D’s conduct]
c. This step addresses what reasonable due care actually requires D to do or
refrain from doing based on the reasonable prudent person who is similarly
situated
d. There are various standards of care of RPP that might apply based on the
specific fact pattern
e. Consider what the applicable standard of care is to that specific defendant
f. Consider what standard of care applies
g. What does the standard of care require the D to do or refrain from doing?
(3) (1)(B)(1) RPP
i. Rule: Duty is an obligation to conform to an existing standard of care which
D’s duty is to exercise the care that a RPP exercising reasonable intelligence,
judgment, and perception who knows or should have known that his conduct
against P would create an unreasonable risk of harm or death under the
circumstances.
ii. Essay Prewrite: A RPP would know or should have known that the [reference
fact for being sued for (ex. That holding a contest requiring ppl to hold their
wee for wee] would pose an unreasonable risk of harm because [reference past
fact that shows that knew or should have known of the danger] in the past other
similar radio shows contest resulted in ppl dying when they held their pee.
iii. What a reasonable person does is weigh the costs and benefits of a particular
action
iv. Being reasonable is relative to the community in which you live i.e., we do not
start with a blank slate
v. The RPP is responsible for attention, perception of the circumstances, memory,
knowledge of other pertinent matters, intelligence, and judgment as a
reasonable person would have
vi. In essence, ask yourself whether a reasonable person would know or should
know that there’s a danger or an unreasonable risk of harm and can it be
prevented
vii. The RPP is based from the standpoint of a logical adult
viii. What does the reasonable person know?
1. For the purpose of determining whether the actor should recognize that her
conduct involves a risk, he/she is required to know:
a. The qualities and habits of human beings and animals and the quantities,
characteristics, and capacities of things and forces in so far as they are
matters of common knowledge at the time and in the community; and
b. The common law, legislative enactments, and general customs in so far
as they are likely to affect the conduct of the other or third persons
c. Everyone must know the law
ix. The reasonable person evolves with the circumstances
1. As circumstances, that would put a RPP on notice that new precautions are
needed, thus, she must adapt to the new reality
2. RPP must keep up with the circumstances i.e., technology, weather patterns,
not leaving your children in the car when it’s hot
b. Mental and Physical Disability
i. (A) Physical Disability:
1. Rule: One must take the necessary precautions which the ordinary
reasonable person would take if she were blind or disabled
2. Restatement §28C: If the actor is ill or otherwise physically disabled, the
standard of conduct to which he must conform to avoid being negligent is
that of a reasonable man under like disability.
3. However, if an actor is acting entirely involuntarily; there is no tort liability
where the D is rendered unconscious with no warning of impending danger
or unreasonable conduct putting her in that state.
4. The D’s own physical qualities may be taken into account by the jury in the
breach determination
5. Jury can consider such things as the D’s height, loss of a limb, deafness,
no sense of smell, epilepsy, or paralysis caused by polio in deciding
whether the D acted reasonably, and the standard of care will reflect the
actor’s physical condition
6. Blindness:
a. A blind person is compared to another blind person
b. Example:
i. D, blind since birth, is walking down the street and collides into and
injures P. In P’s action against D for negligence, the jury will evaluate
D’s conduct, comparing her to a reasonable blind person under the
same or similar circumstances. A jury could still find D negligent if it
concludes that a reasonable blind person would have taken greater
precautions.
c. Do greater precautions exist?
i. If a blind person is negligent in going out on the street unaccompanied
the rule is “a blind man may not wholly rely upon his other senses
to warn him of danger but must use the devices usually employed,
to compensate for his blindness.”
d. Example:
i. Fletcher v. Aberdeen 1959: “While a city . . . owes no more than due,
ordinary, or responsible care toward a blind or other physically
afflicted or handicapped pedestrian, in respect of the condition of
walkways, the effect of the affliction of handicap may be considered
in determining whether the required degree of care has been
exercised.”
7. In what ways might the ADA affect tort law? –The Americans with
Disabilities Act (“ADA”) was designed to require accommodations in all
areas (employment, public service, public accommodation,
telecommunication) where a disabled person might encounter unnecessary
difficulties went into full effect in 1994
8. This negates the above statement
a. Just because a party’s physical condition is taken into account, it will
not excuse him from being held liable for negligence
b. The jury will be asked to decide if a reasonable person with the same
condition would have behaved like the D
9. Intoxication:
a. Rule: Voluntary intoxication does not excuse one from liability unless
their actions are not negligent.
b. Example from Restatement §283C: A drunken man may still act in all
respects as reasonably as one who is sober; and if he does, he is not
negligent. If, however, his conduct is not that of a reasonable man who is
sober, his voluntary intoxication does not excuse him from liability.”
c. However, involuntary intoxication (person drinks from a punch bowl that
is spiked or suffers an unexpected reaction to medication) is typically
treated as a physical ailment
d. Intoxication can be viewed as a physical condition to a certain extent
e. Because the reasonable person is viewed as sober, however, the
voluntarily intoxicated defendant will be required to perform as well as a
sober person, not as well as a reasonable person at that level of
intoxication
f. Robinson v. Pioche – “A drunken man is as much entitled to a safe street
as a sober one, and much more in need of it.”
10. Examples:
a. Walking with a cane is not always necessary. If P walks w/o one, under
what circumstances will he be found to act reasonable?
b. Is it reasonable for a blind person to walk w/o a cane to visit a co-worker
in an unfamiliar part of town?
c. What if the blind person has exceptional hearing than the sight-seeing
person? Is he held to a higher standard than the non-blind person when
sensing danger?
i. Typically, if you lost one of your senses, then the other heightens
ii. If you have a heightened ability or skill you are held to a higher
standard because the RPP would do it – blind or not
iii. If you have a special skill or ability you are held to the skill of that
ability as a RPP rather than someone who doesn’t have that skill or
ability
d. What duty does city owe to the blind person? (consider ADA)
i. Cities are required to exercise RPP to all people and blind people
ii. ADA requires ramps, accessible building and that is the obligation the
city owes to a blind person
e. Roberts v. State of LA:
i. Plaintiff was an older, frail old person (75 years old). The D was a big
burly guy. The blind guy used his facial senses to navigate himself.
ii. Does it matter where he was going?
1. Yes, he was familiar with the area
2. Ct. says it was reasonable for him to use his face if he is walking in
a familiar area
3. If he was walking in an unfamiliar then that would be different
because the reasonable person would use a cane in an unfamiliar
area
4. If it’s a high traffic area, the reasonable blind person would not use
a cane because it can cause tripping and falling, however, there is
an obligation to other people to avoid tripping on the cane
ii. (B) Mental Disability: [Adult v. Child]
1. Rule: If an adult has a mental deficiency or defect, then they are not allowed
special allowances. However, if a child has a mental deficiency or defect,
there are special allowances.
2. Explanation: Mentally disabled defendants are responsible for the torts they
commit regardless of their capacity to comprehend their actions; they are
held to an objective reasonable person standard
a. Most jurisdictions do not recognize an exception to the general rule even
for sudden mental disability
3. Restatement § 283B: “Unless the actor is a child, his insanity or other
mental deficiency does not relieve the actor from liability for conduct which
does not conform to the standard of a reasonable man under like
circumstances.” After noting that insanity is not taken into account,
continues: “As to mental deficiency falling short of insanity, as in the
case of stupidity, lack of intelligence, excitability, or proneness to
accident, no allowance is made, and the actor is held to the standard of
conduct of a reasonable man who is not mentally deficient, even though
it is in fact beyond his capacity to inform.
4. People with mental conditions are treated differently from people with
physical conditions when it comes to the standard of care
5. For the most part, people who are insane are held to a standard of sanity
because the reasonable person is deemed as sane
6. Likewise, people with cognitive disabilities are held to a level of normal
intelligence
7. Justifications for the rule:
a. Mental disability is too hard to measure;
b. Measuring one’s cognitive issues is difficult
c. People can easily “feign” (pretend) to be mentally disabled;
d. People can easily “yell wolf” and say they are “feign” or pretend they are
mentally insane when in fact they are not
e. An innocent person should be compensated; and
f. The ultimate goal is to provide the plaintiff (innocent person) with a
remedy
g. Imposing liability will make guardians take greater care of those who
are mentally disabled
h. Holding mentally insane people liable will force their legal care takers to
keep a better eye on them
8. More jurisdictions implement a dual standard:
a. Objective Standard: Uses the objective standard for the mentally
disabled when they are defendants;
b. Subjective Standard: But a more flexible standard taking mental
condition into account when they are P’s and the issue is their
contributory negligence
c. Excuse the conduct if the insanity prevented the P from understanding
the danger and taking action
d. Courts have more compassion regarding the contributory negligence of
the mentally impaired P’s
e. Those who are insane are capable of contributory negligence, whereas
lesser degrees of mental impairment should be considered by the jury in
determining whether the P was contributorily negligent
f. Maunz v. Perales – Jury should use capacity based standard in
determining comparative fault of patient who committed suicide in
action against psychiatrist who had treated him.
g. Modern trend appears to favor the use of capacity-based standard
for the contributory negligence of mentally disturbed plaintiffs
9. Justification for the dual standard:
a. This approach furthers the compensation goal of torts
b. When courts have taken mental disabilities into account, the use of a dual
standard calls into questions the claims of some people that mental
conditions are too hard to measure or too easily “feigned” aka faked
10. Mental deficiency or defect: Breunig (intoxication etc.)
11. Why should there be a difference?
a. Ability to afflict harm is greater for an adult and not a child
b. Stereotype: Children are more innocent and need protection
12. Breunig v. American Family Ins. Co.
a. She went to a psychiatrist before
b. Some evidence that there was some notice?
c. Up to the jury to decide
13. Under negligence we make an exception for sudden incidents
14. No Negligence for Sudden, Unexpected Incapacity
a. Sudden incapacity where D neither knows nor should know of the
incapacity which affects:
b. Ability to perceive danger;
c. Ability to use sound judgment; or
d. Ability to act in response to danger
e. A sudden mental incapacity equivalent its effect to such physical
causes as a sudden heart attack, epileptic seizure, stroke, or fainting
should be treated alike and not under the general rule of insanity
f. The greater the risk of harm, the greater the level of caution that should
be taken
c. (C) Reasonable Person Acting in Emergency Circumstances
1. Rule: The fact that a party is confronted with a sudden emergency which
requires rapid decision is a factor which may be taken into account in
determining the reasonableness of his choice of action
2. Third Restatement: an emergency is “an event that requires a decision
within an extremely short duration and that is sufficiently unusual so that
the actor cannot draw on a ready body of personal experience or generally
community knowledge as to which choice of conduct is best.”
3. Doesn’t excuse people from reasonableness, just modifies that to say well
look in that emergency situation, that may have been a reasonable action
4. When a jury is determining the reasonableness of the D’s conduct, they must
decide whether the D acted as a reasonable person
5. Example:
a. D is waiting in his car in a line at the drive-up teller window. Suddenly,
the car in front of D begins to back up. Without signaling, D immediately
puts his car into reverse and backs up into P’s car, causing property
damage. The jury is entitled to consider the consider the fact that D as
acting in an emergency situation, but could conclude that the reasonable
person in that predicament would have employed greater care than did
the D. The defendant would have employed greater care than did the
defendant. The defendant acting in a predicament is not expected to
employment the same level of judgment and reflection as would a
reasonable person not in an emergency.
6. Therefore, where the D makes an error in judgment, there will be no
negligence liability provided that reasonable persons in that position could
make a similar mistake. (good faith belief??)
7. The ultimate question is, what would a reasonable person do in this
circumstance?
8. Example:
a. Cordas v. Peerless
b. A taxicab driver was accosted by a thief who was being pursued by his
most recent victim. The driver, after being threatened with a gun. In an
emergency situation, he does something (puts the brake on) to try to stop
the car. This shows that he did everything he could to prevent the
situation from going south. This would normally be deemed as negligent,
but because it is an emergency situation, we must take note of that
c. Here, Peter had to make a split second decision and had to act quickly,
and there was no time for deliberation so his judgment need not be
perfect but viewed as
d. Long Island RR case.
i. Guy saves baby
9. (1) Exception to the Emergency Doctrine
a. Rule: Where D may have been negligent in (a) failing to anticipate the
emergency or (b) creating the emergency, the emergency rule does not
apply. “Emergency Doctrine” is unavailable where the D’s tortious
conduct contributed to the creation of the emergency.
b. Explanation: “Emergency Doctrine” is unavailable where the D’s
tortious conduct contributed to the creation of the emergency
c. Example:
i. If D is speeding and suddenly finds herself confronted with the choice
of hitting a child or P’s car and opts for the latter, D will not be able to
have the jury instructed to consider the emergency context in which D
had to act.
d. Situations in which D can be held negligent for failing to anticipate
i. Example:
1. Business establishments may be expected to anticipate the
possibility of fire, operators of public pools should anticipate
drowning, and drivers should be on the lookout for unexpected
hazards.
e. Why should we relax the standard when the reason was the P’s own
making ?? maybe
i. A person can be negligent even in an emergency circumstance
ii. Creates an unreasonable risk of harm to others
ii. Emergency & Reasonable Person Standard
1. Does emergency excuse the actor from the standard of the reasonable
person?
a. No
2. Can an actor’s negligence be found to be unreasonable even in light of the
emergency?
a. Yes.
b. Driving is so fast that even in an emergency situation going through
those lights, it would cause en even greater harm
c. Not giving people reasonable notice by not putting their lights on, that is
unreasonable
3. Are there situations in which one may be required to anticipate an
emergency?
a. Yes, drowning in a pool
(4) (D) The Reasonable Children Standard
i. General Rule: If the actor is a child the standard of conduct to which he must
conform to avoid being negligent is that of a reasonable person of like age,
intelligence, and experience under the circumstances. See REST §283A
ii. If the child is engaging in child activities, they are held to a reasonable child
1. 7-year old will be compared to other 7 year olds
2. may excuse them for liability
iii. (D)(1) The Exception to the Child Standard
1. Rule: Although the duty owed by a child is generally measured as that of an
ordinary child of like age, intelligence, education and experience, when
children undertake adult activities, they are held to the reasonable adult
standard
2. Example:
a. Robinson v. Lindsay
i. Whether the child should be held to the reasonable child standard or
adult.
ii. Snowmobile requires skill and judgment and a child doesn’t have that
iii. If we didn’t have this, kids wouldn’t be held accountable for people
getting injured
iv. Liability is the basis
v. If the kids are at a level of maturity and the ability to appreciate
danger then they will take the age into account, but there is no bright
line rule
vi. Ten-year-old boy who lost his foot when he slipped under a train
while attempting to jump onto a coal’s car ladder to ride the train
through an intersection where it was required to move 5 mph. Boy
states he knew the danger but chanced it to be like the other boys.
vii. Look Violation of child labor laws or a statute that states a child can’t
work etc.
b. (E) Industry Custom
i. Rule: Compliance to the industry custom does not relieve a person of liability
while noncompliance with industry custom may be deemed as dispositive
evidence of lack of due care. The following elements must be proven:
ii. (1) Must be widely adopted
1. Rule: Custom is widely adopted since the method of construction of no
frame shower doors meets national safety standards.
2. In order for the evidence of D’s deviations from custom to affect the breach
determination properly, P must show that the harm the custom developed to
avoid is the same as that suffered by P whatever that means
3. Example:
a. Trimarco v. Klein: P must show that the reason most landlords use
shatterproof glass in shower doors is to avoid cuts
iii. (2) Shows what is reasonable or negligent behavior
1. Rule: The custom shows that adopted a national safety standard is not
reasonable behavior.
iv. (3) Relevant to D’s Act
1. Rule: The industry custom must be directly relevant to D’s act in question
2. Whether P owes a duty of care under industry custom that imposed a duty of
care to provide adequate shower frames.
3. If there is an industry custom, it may serve as evidence of reasonable due
care requires D to do or refrain from doing since customs don’t usually arise
unless there are substantial arise unless there are substantial damages to be
avoided
4. Custom is evidence that may be relevant to a jury when deciding whether a
breach of duty exists or not
5. Custom evidence is not determinative; it is simply evidence for the jury to
consider in its determination of breach of duty
6. Custom usually refers to a well-defined and consistent way of performing a
certain activity, often among a particular trade or industry
7. Most cases involve evidence of custom raised by one of the parties
8. P may try to assert the D’s deviation from custom as evidence of lack of due
care
9. D may try to avoid liability by showing compliance with custom
v. Deviation from Custom: If P can persuade the jury that there is a well-
established custom (practice widespread enough that D knew of it or should
have known of it) the jury may consider D’s deviation from custom in its
determination of breach of duty
vi. Example:
1. Trimarco v. Klein
2. P is injured when she is cut by glass that shattered when she fell against her
shower door. P sues her landlord for negligence, saying that the landlord
acted unreasonably by using glass that shatters in a shower door. To prove
this, P seeks to enter evidence that most landlords use shatterproof glass for
shower doors
3. Is this evidence admissible? Yes
4. What is its effect on P’s negligence claim?
vii. Custom evidence alone does not establish breach of duty, it depends on the
unique facts of each case and on how a jury elects to assess the facts
viii. Standard of care is unchanged for D; he will still be held to the requirement of
acting as a reasonable person under the same or similar circumstances
ix. Custom is not dispositive of what reasonable behavior is. It can be evidence of
negligence or the lack thereof.
x. Mere compliance with custom does not automatically excuse liability for
negligence, if a reasonable person would take additional precautions beyond the
custom practice. (additional reasonable steps)
xi. Non-compliance may be proof of negligence, unless it was reasonable to defy
compliance.
1. It may be custom to walk on one side of the road but if that side of the road
has cracks it may be necessary to drive on the other side of the road
xii. You can find the entire industry negligent in the standard and their custom
unreasonable
(5) Trade Rules and Standards
i. Rules and standards for the conduct of an activity promulgated by authoritative
groups, if relevant and recognized as authoritative are similar to custom and
often admitted as some evidence of the standard of care
ii. Trade standards also guide you
iii. Trimarco v. Klein: If it can avoid a reasonable risk of harm, then the it should
be implemented
(E)Professional Malpractice
iv. Rule: One must exercise the knowledge, training, skills, ability, and
competence of an ordinary member of their profession in good standing
v. Explanation: Attorneys, physicians, or others who are certified specialists, or
who hold themselves out as specialists, are held to the standards of that
specialty, but again, in most cases the customary conduct of reasonably well-
qualified specialists conclusively sets the standard of care
vi. Essay Prewrite: A professional(/doctor/lawyer) did/did not exercise the
judgement, skill, expertise and of an ordinary member in good standing in their
profession when they [reference fact their being sued for operated on the wrong
side of the brain] because it fails to demonstrate they exercised proper
judgment/or care of a reasonable (doctor/lawyer).
vii. If one is a specialist, they are held to the higher standard of competence
mandated by that specialty
viii. Examples: lawyer’s and doctor’s must take credits every two years or an
anesthesiologist
ix. Professional Malpractice (Negligence) Applies to:
1. Pilots
2. Doctors
3. Attorneys
4. Architects and engineers
a. good workman like conduct, behavior being ethical, and
competence
5. Accountants
a. certify that their reports have been reviewed
6. What about teacher and clergy?
7. Teachers
a. There is a difference b/w breaching of K and fraud claims
1. Teachers
2. Causation
a. Problems occurring at home but teachers should be held
accountable for what they do
3. If you place liability on the teachers, then there may be a shortage
8. Clergyman
a. We know that clergyman should not be molesting children or
engaging in marital affairs
9. Example:
a. Heath v. Wings
i. Trial court accidentally applied a subjective standard
ii. Heath should have been held to a reasonable pilot standard
not his own standard
iii. Applied to pilots
iv. Won’t be judged on the training and skills of the RPP but of
the certification within that practice
b. Boyce v. Brown
i. What does she claim was negligent about the doctor that was
treating her?
ii. Her ankle starting swelling up
iii. Second Dr. found the reason for her pain
iv. Why didn’t the first doctor do the x-ray?
v. the court said it was not necessary to do an x-ray
vi. wasn’t necessary
1. Held to the higher standard no matter what
2. Here, you do not get the benefit of a lower standard
3. You must perform at the level of minimally competent lawyers
generally, not novices
10. (E) Medical Malpractice Standard of Care:
a. Rule: In most jurisdictions, the standard of care of medical
doctors (and sometimes other professionals) is conclusively
established by the customary or usual practice or reasonably
well-qualified practioners in that field
b. Standard of care can’t be looked up in the book
c. It is established by expert testimony of doctors by medical pp
in the professioncan be an evolving standard
d. Battle of the expertscan be expensive depending on the
technicality involved
e. P and D put on their own expert and then the jury must decide
which is credible
f. The local custom rule is no longer controlling law when it
comes to medical malpractice
11. Expert Testimony:
a. In most cases involving a claim of professional negligence, P
will be unable to establish a sub-miscible case w/o expert
testimony establishing
i. (1) the relevant standard of care,
ii. (2) the D’s conduct did not conform to that standard, and
iii. (3) that there was a causal relationship b/w D’s breach and
P’s injury’s
iv. Can’t use opinions as facts, but when it’s an expert opinion
their word is admissible as evidence
v. They will say “in my expert opinion, the doctor did not
perform to the SOCegregious gross negligence
vi. Is it a severe extreme deviation from the standard of care?
12. Common Knowledge
a. On occasion, the facts will be such that the ordinary layperson
can determine that the D’s conduct did not conform to the
standard of care
b. In such “common knowledge” cases, no expert testimony is
required to prove the D’s negligence
c. Operating on the wrong side of the brain no E.W. needed to
state the obvious
*No duty to warn of obvious dangers
*No duty to disclose of danger that are obvious
13. Occurrence of Adverse Result
a. Sometimes an EW cannot testify to an opinion as to exactly
what the D did that was negligent, but can testify that the
adverse result would not have occurred if the D had exercised
ordinary care
14. (1) Informed Consent
a. Rule: Under the doctrine of informed consent, a patient’s
consent to a particular treatment, procedure, or other
professional conduct must be based on the professional’s
disclosure of the material risks and alternatives to the proposed
conduct so that patient/client can make an informed decision as
to whether to consent
b. I.C. has 2 different standards that apply:
a. (i) The Reasonable Doctor Standard (the majority
standard RDS); and
i. Rule: The doctor only needs to disclose that which a
reasonable doctor would disclose that is consistent with
what has been medically acceptable in her profession
ii. In a “reasonable doctor” jurisdiction, a doctor testifies as to
what doctors would do
iii. Under the reasonable doctor standard, the doctor would be
justified in saying or doing nothing
b. (ii) The Reasonable Patient Standard (RPS)
i. Rule: Under this rule the doctrine must disclose that which
would be materially relevant to the patient.
ii. Under the RPS, the ct. would rule that patient should have
been told that doing nothing was medically acceptable as
any reasonable patient would want to be told of the
material risks involved including the adverse risk of
hysterectomy could result from the operation
iii. In a “reasonable patient” jurisdiction, it’s a little trickier
because it’s hard to contemplate such a thing as a “patient
expert”
iv. In this case, you use a “reasonable person” standard
v. From the internet came a new understanding of what is
reasonable for the patient
vi. *Preventive Law: It is always good practice to tell the
patient about the adverse risks hysterectomy that could
result from the operation if compliance w/custom is not
reasonable
vii. *Medical industry says its reasonable for the doctor to do
nothing, but if you are the patient, you would want to know
the risks of surgery and also the alternatives (not to
undergo the procedure)
viii. Jury has to look at the credibility of the Plaintiff
ix. Requirementinfo that is pertinent to the patient
x. Broader disclosure than the reasonable doctor
xi. Might take into consideration the emotional state of mind
and economic interests the patient
xii. We know that its material info if it would affect the
patient’s decision to go through with the procedure
xiii. Example:
xiv. P (hand model) goes in to get surgery on her hand and
the doctor might disclose the procured but not disclose
the possibility of scares reasonable patient that is a
hand model would want to know the risks
xv. Even if the patient has a pre-existing condition/pre-
exposed, the doctor must let the patient know of the
possible outcomes the procedure might have on the patient
if the doctor doesn’t expose this info, then that is not
good
xvi. Example:
xvii. Moore v. Regents:
xviii. Fails under conversion because he doesn’t have a
possessory right. Department of health regulations
said once tissue removed from the body is destroyed,
he doesn’t have a possessory right. But if you’re
saving that tissue for a loved one or for healing and
that’s a K that’s made then there may be a right to it
xix. Difference b/w battery
xx. Battery no consent whatsoever given at all
xxi. Operated on the left ear instead of the right hear
xxii. Consent
xxiii. May be some consent but they are not perfectly
formed
xxiv. Didn’t advice you of alternative methods or risks
involved
xxv. Neither Reasonable doctor standard nor reasonable
patient standard would apply
xxvi. Financial interest above health may cause biasness
xxvii. Not disclosing financial interest is truly egregious
b. Affirmative Duties
i. (F) Special Relationship
1. Whether there is a special relationship that may also require a duty.
a. Rule: When there is a special relationship between P and D, it is enough
to create a duty of reasonable care. Therefore, in order for P to prevail,
she must establish a special relationship by demonstrating that some
degree of dependence exists among P and D such that would justify
imposing upon D a duty of reasonable care.
b. (F)(1) Tarasoff Duty
i. Did D owe P a Tarasoff duty?

1. Rule: The rule states that if an actor realizes or should realize due
to specialized knowledge of harm to another as a result of a
relationship that has created an unreasonable risk of causing
physical harm to another, she is under a duty to exercise reasonable
care to prevent the risk from occurring. This can be done either by
warning the putative victim, controlling the offensive D or both if
possible.
2. Certain relationships carry with them a duty by D, the dominant or
custodial member, to use reasonable care to regulate the conduct of
(1) the person within his custody or control also as to protect the
third persons or (2) third persons so as to protects the person in his
custody of care
a. (1) D1 has a duty to control the other D2 and/or to warn a 3rd
party P
b. (2) Protect material witness by keeping them in your custody
of control by making sure the third person is not negligent
i. Obligation to try to control the people who snitch on a
well-known murdered
c. Example:
i. Here, the doctor has a duty to regulate the conduct of the
patient for her treatment and protection. However, his
failure to instruct you to remain in seclusion during your
illness failed to protect third person like your roommate
and family that the doctor knew or should have known
would have come into contact with you
ii. Something about the relationship has given a reason to
warn or control i.e., Psychiatrist had a Tatiana tarasoff duty
to warn her family
iii. As a result of this special relationship, you come into
knowledge about harm to a third party or potential harm to
Tatianaduty to warn if not a duty to warndon’t do
either when you’re liable
iv. Doctor discharges you with instructions to go home and get
plenty of rest, is that enough?
v. NO, doctor needs to control his conduct by quarantining
himself and not exposing him to others. Even if he doesn’t
know who he might come into contact with, he should still
tell the patient to quarantine himself and also has duty to
warn the sister (3rd party) so the doctor has to control his
patient and warn the 3rd party but if you can’t do both then
at least do one of them. No tarasoff duty unless there is a
special relationship.
ii. (2)(b) What does it require D to do or refrain from doing under
the circumstances?
1. Include in Essay: (2)(b) What does the applicable standard of care
require D to do or refrain from doing? D is required to: (2)(b)(1)
provide adequate shower doors with frames and (2)(b)(2) contact
the glass contractor within a reasonable time to fix Susan’s shower
doors.
2. What does the duty require the D to do or not do?
a. This is D’s conduct
3. This step addresses what reasonable due care actually requires D to
do or refrain from doing based on the reasonable prudent person
(RPP) who is similarly situated to D
4. Note: The Judge determines whether there is a duty as a matter of
law and its applicable standard of care
a. Duty is a matter of law for the judge.
5. Note: The jury determines as a matter of fact whether the D’s
conduct meets or fails to meet the duty and its applicable standard
of care
a. Whether the duty has been met is up to the jury.
b. Note: Reasonable minds can differ
c. (G) Nonfeasance:
i. Rule: No liability for failure to act when D is passive observer who is not
responsible for original danger unless there is: (more than one exception may
apply). The modern trend imposes duty to act reasonably even though D is fault
free, or non-negligent in behavior.
ii. (G)(1) Nonfeasance Exceptions
1. Rule: (1) D assumes/starts act, then abandons to P’s detriment or performs
negligently. Duty requires act to be performed to its non-negligent
conclusion (using reasonable care) [Good Samaritan statute excuse
negligence of acts/assumed duties if not grossly negligent]; (2) D creates
peril or makes it worse; (3) P detrimentally relies on D’s gratuitous promise;
(4); Gratuitous promise; and (5) Voluntary act.
iii. D assumes / starts act, then abandons to P’s detriment or performs negligently.
Duty requires act to be performed to its non-negligent conclusion (using
reasonable care)
iv. Good Samaritan Statute excuses negligence of acts/assumed duties if not
grossly negligent
v. D creates peril or makes it worse
vi. P detrimentally relies on D’s gratuitous promise
vii. (G)(2) Modern trend:
1. Rule: Imposes duty to act reasonably even though D is fault free, or non-
negligent in behavior
viii. Nonfeasance may be tortious in the context of a special relationship, such as
parent-child relationship. Parents have a duty to protects others from their child
if they know or should know that the child has vicious propensities
ix. Example:
1. Here, as Eric’s parent, you were on put on notice that Erica has vicious
propensities. You therefore had an obligation to protect neighboring children
who might foreseeably be hurt (by reforming Eric or not letting him play
with the other kids).
(6) Something about the relationship has given a reason to warn or control
(7) Unless there is a special relationship then there may be a duty act
(8) Example:
i. Eric is a kid and he wants to play with the little neighbor, mom has a duty to
warn the little neighbor and/or a duty to control Ericshould have known
ii. Special relationship creates knowledge that gives you knowledge
b. (G) NIED Duty
i. Use this in place of Cardozo and Andrews Test

ii. (1) Direct Test and Bystander Test
1. Rule: The direct test requires the following to be met: impact test, physical
manifestation test, and the zone of danger test.
2. (A) Impact Test
a. Rule: P must suffer physical contact for NIED claim. Only if D directly
hits and impacts P, may P then recover for any emotional distress.
b. P must suffer physical contact for NIED claim
c. Only if D directly hits and impacts P, then P can recover for any
emotional distress
d. Court doesn’t trust this 
e. (except for Florida)
3. (B) Physical Manifestation Test
a. Rule: P must suffer physical effects, but no impact is necessary. If D
does not hit P, then P can only recover if P suffers physical symptoms
such as heart attacks, strokes, ulcers, and miscarriages.
b. P must suffer physical effects, but no impact is necessary
c. IF D does not hit P, then P can only recover only if P suffers physical
symptoms
d. No physical injury needed at all, but there is still a reliance on physical
symptoms needed
e. *Show us that you have some real physical manifestation of ED or else
we will not believe that your claim is valid
f. Heart attacks, strokes, ulcers, miscarriages (classic)
4. (C) Zone of Danger
a. See above under Cardozo.
b. Accordingly, although co-workers satisfy the zone of danger element,
because the impact test and the physical manifestation test fail, the direct
test is not satisfied.
c. Is P within the zone of danger created by D?
i. If yes, she may recover
1. If P is standing w/in “Zone of Danger,” P has standing to recover
for ED
2. *Area harm is likely to occur based on D’s conduct*
3. If a car almost hits you then you can recover because you are likely
to suffer a more ED if you are near the zone of danger
d. If not, no recovery allowed
i. P is standing outside zone of danger, therefore, P cannot recover
ii. Zone of danger created by D’s conduct
iii. Similar to Cardozo and Andrews except looking at whether a person
can suffer emotional distress standing to sue for ED
iv. If you don’t have physical impact how can we tell if you have ED?
1. W/in the zone of danger close enough to get hit
2. PTSD
3. Just be w/in the ZOD
4. Eggshell rule still applies to NIED…neg..
5. May have a debilitating fear after
6. As long as the initial act has caused distress anything that follows
after that gets attached on
iii. (2) Thing v. La Chusa Bystander Test
1. (A) Closely related
a. Rule: The bystander P and the injured P must be closely related by blood
or marriage because they are more likely to suffer emotional distress than
non-related P’s. However, fiancés are not included in this category.
b. 1. Bystander P and injured P are closely related;
c. *2-closely related—more likely to suffer Ed
i. By blood or marriage
ii. N/A for fiancés
2. (B) Present
a. Rule: Bystander P witnessed injured P’s injury and was present at the
time of occurrence and present at the time of injury. The bystander P
must be physically present at the scene of the accident; it is not enough
for the P to be near the accident.
b. 2. Bystander P witnessed injured P’s injury of occurrence and was
present at the time of occurrence and was present at time of injury; and
i. Physically present at the scene of the accident, not enough for you be
near it
ii. Must be percipients (must be aware) witness
iii. Must witness it or perceive through one our senses
3. (C) Emotional Distress
a. Rule: Bystander P suffered emotional distress (more than what a
disinterested witness would). Severe emotional distress than what a
disinterested person would suffer but not so much more than what a
normal person would suffer.
b. 3. Bystander P suffered emotional distress (more than a disinterested
witness would).
i. Severe ED more than what a disinterested person would suffer but not
so much more than what a normal person would suffer
iv. Examples & Exercises:
1. Judicial economy triumphs fairness
a. Here the mother saw the child and things that he is dead
b. Amaya case
2. Dillon v. Leg (foreseeability test)
a. Mom came upon the scene and saw her child hit at that time of the care
but beaus she was outside that ZOD she could not recover
b. Court says that Is not fair
c. Refined it in Thing v. La Chusa Test
3. Easiest claim to make yet the hardest to disprove that is why we have the
physical impact test b/w the D and P
4. No direct impact b/w the P and D
5. Daley case
6. When the call of the q comes it will be specific when the jurisdiction comes
but be inclusive with other torts
7. Exercises: what outcome Under IR, PM, ZOD, La Chusa tests?
a. Assume severed distress occurs:
i. P is standing on curb when she witnesses daughter hit
b. Physical impact?
i. No not touched
ii. Physical manifestation
iii. Heart attack stroke?
c. ZOD?
i. May not be w/in the ZOD may not be able to recover
8. Thing v. La Chusa
a. Closely related
i. yes
b. Was she present?
i. Yes
9. P is crossing the street when car nearly hits her
a. Physical impact?
i. No
b. Physical manifestation
i. Need more info
c. ZOD?
i. Yes, he nearly hits her so he is w/in ZOD
d. Thing v. La Chusa
i. Need more facts
10. P after coming from shopping walk out the supermarket door to see her son
laying in the street bloodied and moaning in pain
a. Physical impact?
i. No
i. Want to see some p.m.
c. ZOD?
i. Yes, closely related
11. P hears her son scream as he is hit by the car
a. Physical impact?
i. NO
c. ZOD?
i. Perceives the accident, hears her son being hit (percipient witness)
ii. Closely related
12. P see his gf hit by a car right in front of him
a. Physical impact?
i. No
i. Want to see some p.m.
c. ZOD?
i. NO, not a close relationship rec. by the law
Nonetheless, based upon common knowledge of specific dangers regarding off-track

shower doors, Mona as a landlady should have directly advised Susan of the dangers
involved in using a shower door that is off-track and possibly taken steps to avoid the
tragedy from occurring.
(H) Landowner Duties

Whether there is a landowner duty owed to P.
a. Rule: As a general rule, a possessor must exercise reasonable care to see that
activities and possessor-created conditions on the land do not harm his neighbors or
passers-by on adjacent ways
b. Remember:
i. *REMEMBER JESS! ONE’S STATUS CAN CHANGE DURING A SINGLE
ENOUNTER SO FOCUS ON THE VICTIM’S STATUS AT THE PRECISE
TIME OF THE ACCIDENT! (don’t worry about the status prior to the accident
unless you are analyzing in on an essay)
ii. **i.e., Jill Scott was originally a trespasser, once she received the invitation to
drink tea she became a licensee, and when Sade suggested that she go to the
studio to sign a record deal she became an invitee (business purpose).
c. (1) Adjacent Public Ways
i. Rule: On Ways. D is subject to liability to persons traveling on public ways
adjacent to his property if he negligently creates or maintains an artificial
condition or activity which subjects those persons to an unreasonable risk of
harm.
i. Example:
a. Balls flying out of the park
b. Duty to keep property safe for neighbors
c. Right and obligation to maintain your property
d. Highways, sidewalks etc.
d. (2) Deviations from Public Ways
i. Rule: If D can foresee that persons using an adjacent public way may deviate
from it onto his property as a normal incident of their travel, he must exercise
reasonable care to protect them from unreasonable risks of harm which they may
encounter as a result of activities or artificial conditions created or maintained on
his land.
ii. If deviation is created, then you are liable
e. (3) Artificial Conditions
i. Rule: If D or anyone else has ever altered the natural condition of the land so as
to create or aggravate the risk, or D knows or should know of such risks, D is
subject to liability for unreasonable risks thereby created.
ii. Explanation: Takes premises as is – no duty unless the following are involved:
(1) Common areas; (2) Voluntary/negligent repairs; (3) Latent (hidden) defects;
and (4) Public admissions.
i. This rule is increasingly applied only to rural land. Even there, it applies only to
unaltered natural conditions.
ii. In urban areas, D has a responsibility to take care of tree limbs, grass, etc.:
iii. (a) Lessor (Landlord) – Lessee (Tenant)
 (i) Common Area
o Rule: The lessor has a general duty to use reasonable care to make
common areas safe such as the lobby or stairwells of an apartment
building.
 (ii) Voluntary Repairs
o Rule: If the lessor contracts, as part of the lease, to keep the premises in
good repair, most courts hold that the landlord’s breach of this covenant
to repair gives a tort claim to anyone injured. However, P must show that
D failed to use reasonable care in performing; it is not enough to show
that D breached the contract
o *Lessor contracts to repair.
 (ii) Negligent voluntary repairs:
o Rule: The landlord may incur liability even without a contractual repair
obligation if she begins to make repairs, and either performs them
unreasonably, or fails to finish them.
o *This is clearly true where the landlord worsens the danger by
performing the repair negligently.
o *If injury results from landlord’s negligently-performed repairs, he is
liable.
o *Courts are split about what happens where the landlord starts the
repair, then abandons it, without worsening the danger. – TAKE
NOTE OF THIS ON EXAM
 (iii) Latent Defects
o Rule: At common law, the general rule is that the landlord assumes no
liability to a tenant for the conditions of the leasehold. However, an
exception to the rule is latent defects in which concealed, dangerous
conditions existing when the tenancy begins and the lessor knows or
has reason to know of the condition.
o Lessees of property are liable to the same extent as landowners (must
warn, inspect premises to make them safe, and conduct on-property
activities with reasonable care).
o When the lessor knows or has reason to know of a concealed
unreasonably dangerous condition (artificial or natural) existing on the
premises at the time the lessee takes possession, but fails to warn the
lessee about it, the lessor is subject to liability to the lessee and his
guests for physical harm caused by that condition
o *Landlord is liable when he fails to warn of such a condition.
o *Landlord not under a duty to inspect premises, only to warn of
dangers which he knew or should have known, where the danger was
one that P was unlikely to discover himself
o *Note that duty to warn in lessor/lessee context extends to natural as
well as artificial conditions
 (iv) Public Admissions:
o Rule: Although common-law rule states that tenant takes the premises
“as is,” if the lessor has reason to believe that the public will be admitted
onto the premises, there is an exception to the rule in that the owner must
inspect and fix before the leasehold begins, due to the risk of
widespread injury.
o A mere warning to the tenant does not release the landlord from liability
—the defect must be fixed.
o However, if the lease had contained an express promise by the lessee that
he would not admit the public until he had eradicated the danger, the
lessor would be relived of liability.
iv. (4) Entrants Categorical Distinctions (Minority Approach)
 General Rule: D is not liable for physical harm to persons outside the
premises or to adjoining land resulting from a natural condition of D’s land
 Exception a tree is a natural condition, but when it is an urban or suburban
area there is liability
 Duty of owners and occupiers of land: persons liable
o Certain special duty rules apply to claims against possessors of land for
injuries resulting from either a condition of the premises or an activity
being conducted on the premises
o Landowner has an obligation to maintain their property so it will not
injury others
o It is not necessary that the particular structure or other artificial condition
was created by the landowner. IT is enough that is has been created by
some third party or person adjoining landowner or even by another
trespasser
 (a) Discovered Trespassers:
o Rule: You have a duty to warn known trespassers of artificial, hidden
conditions to trespassers that involve a risk of death or serious injury.
o Explanation: Once the owner has constructive or actual knowledge
that a particular person is trespassing, the owner is then under a duty to
exercise reasonable care for the trespasser’s safety such as posting a
warning sign.
o Idea that you knew or should have known i.e., someone cuts a hole in
your fence should know of trespassers on your property
o Constructive knowledge must warn of the dangers
o Discovered trespassers need not be warned about hazardous natural
conditions
o Example:
 A railroad’s engineer must use reasonable care in stopping the train
once he sees P trespassing on the tracks.)
o (i) Frequent Trespasser Exception
 Rule: Landowners generally owe no duty of care to mere
undiscovered trespassers, if the owner has reason to know that
trespassers frequently use some particular part of his land (e.g., a
well-worn path), he must warn the trespassers of otherwise unknown
dangers or use of reasonable care to make the premises safe.
 (b) Undiscovered Trespassers:
o Rule: No duty of care owed to undiscovered trespassers. Even in the
case that you don’t know a person would be there (knew or should have
known met) still must not act in a way that is wontly and willfully
(deviation from reasonable due care)
o Example:
 Ex. On train tracks and you see someone you should blow the horn,
but if you see that someone is there and you do nothing you have
deviated from wantful and willful due care
 (c) Child Trespassers:
o Rule: (1) owner knew or should have known of the unreasonably
dangerous, artificial condition; (2) Risk that a child would be injured
from the condition was reasonably foreseeable; (3) Owner knew
children frequently hung around the property (this is the attractive
nuisance condition); (4) Children were so young that it’s unlikely
that they would appreciate the risk of danger; and (5) Risk of injury
outweighed the cost of making the condition safe. If you have
something on your property that’s dangerous but likely to attract children
to come and play, or that would pose a danger to children, you must
make it safe.
o Broken Down:
 The owner owes a duty of reasonable care to a trespassing child if:
 (1) owner knew or should have known of the unreasonably
dangerous, artificial condition;
 (2) Risk that a child would be injured from the condition was
reasonably foreseeable;
 (3) Owner knew children frequently hung around the property
(this is the attractive nuisance condition);
 (4) Children were so young that it’s unlikely that they would
appreciate the risk of danger; and
 (5) Risk of injury outweighed the cost of making the condition
safe
 Explanation: If you have something on your property that’s
dangerous but likely to attract children to come and play, you must
make it safe.
o This is a 5 part tests (note that this test establishes duty and breach of
duty by itself w/o need to do separate breach analysis (ATTRACTIVE
NUISANCE DOCTRINE—AND)
o P would also have to prove causation and damages, as with any
negligence claim. These are easily proven: conditions clearly caused P’s
injuries and P has actual injuries to satisfy the damages element of
negligence
o It used to be that the child had to be attracted by the thing that hurt him
(“attractive nuisance doctrine”)
o But now if its foreseeable that children will trespass and encounter a
dangerous condition, you must make the condition safer or you’ll be
liable
o However, if it’s too burdensome to require an owner to make all
naturally-occurring conditions on a property safe for small children
(including ones too young to read a warning sign), there is no liability
(no liability for natural hazards)
o Also, AND doesn’t apply to conditions that are “obvious,” i.e., the risk
of drowning in a pond is an obvious one
 (d) Invitees
o Rule: Invitee is owed the duty of due care to search, warn, and fix
dangers on their land. The class of invites today includes business
visitors and public invitee:
 (i) Business Visitors:
 Rule: Persons who are invited by express or implied invitation
onto the land to conduct business with. Those who have a
business interest
 Examples: Non-emergency public servants, like postal
employees & garbage disposal personnel, invited business
visitors to private homes; and
 (i) Public Invitee:
 Rule: Those who are invited as members of the public for
purposes for which the land is held open to the public.
 Examples: Store customers, museums, airport, library
 Remember that if a person does not have to pay to enter a place open
to the public that does not negate the person’s status as an invitee
 PLEASE NOTE THAT DUTY TO SEARCH, WARN, AND FIX
CAN BE COMBINED INTO ONE RULE.
 (ii) Duty to Search:
 Rule: A landowner owes invitees the duty to use due care to
inspect and discover the presence of any dangerous natural or
artificial conditions
 (iii) Duty to Warn of Obvious Dangers:
 Rule: If invitee is aware of danger or the danger is so obvious
as to be appreciated w/o a warning, invitee is not entitled to be
warned of dangers (in a comparative negligence jurisdiction, P
would recover nothing)
 The rule doesn’t apply where circumstances suggest that the
invitee will likely be distracted i.e., if a retail store installs a
large and mesmerizing fish tank, it’s likely to be negligence for
the store not to post warning signs about a step-down in front of
the tank, even though this step-down would have been obvious
had the distraction of the tank not been present.
 (iv) Duty to Fix:
 Rule: If by warning invitees you can make the condition safe,
then you’ve fulfilled your duty. However, if it’s still dangerous,
your duty is not merely to warn, but to fix the problem.
 Duty changes depending on the status of the person coming
onto the property
 Standards of reasonable care they have to makes rue they are
inspecting the premises and making hit safe
 (e) Licensees
o Rule: A licensee is one who enters land with the landowner’s express or
implied permission, but without a business purpose.
o Explanation: There is a duty to warn a licensee of dangerous artificial
conditions known to the landowner where he knows it creates an
unreasonable risk of harm to the licensee, the licensee is unaware of the
condition, and the licensee is unlikely to discover it. There is no duty
owed to a licensee to inspect for defects, nor to repair known defects.
o Licensor only has to warn of dangers that he or she actually knows or has
reason to know
o There no requirement that that warn of obvious dangers but must warn of
hidden dangers
o Only duty owed to a licensee is to warn—if there is time—of known
dangerous conditions that create an unreasonable risk of harm to the
licensee and that are unlikely to be discovered by him.
o Landowners owe a duty to licensees to warn of known dangers – DO
NOT NEED TO FIX KNOWN DEFECTS OR INSPECT UNKNOWN
DEFECTS
o Example of Licensees:
 Social guests, emergency personnel, uninvited solicitors acting for
their own benefit (salespersons and those entering business premises
for reasons other than business i.e., escaping tornado)
o (i) Firefighters Rule (Official Visitors Doctrine)
 Rule: Under FF rule, P as a FF may nonetheless recover if the
situational danger is unusual (greater than normally expected
danger) which P is not warned of
 Under the FF rule, FF and emergency personnel are treated as
licensees
 If rescuing is part of your job, the view is that you’re already
compensated for the risk you take.
 Therefore, you cannot additionally recover from the D unless the
situational danger is unusual (greater than normally expected anger)
which P is not warned of
 Recognizes that even if you are a person that is a ff or some
emergency personnel you are still considered a licensee because
these people know that they are going into dangerous situations
v. (5) Rowlands v. Christian (Majority Approach):
 Rule: Minority approach abolishes all of this (invitee, trespasser, child
trespasser, etc.) and says there is a duty owed to everybody and is of
reasonable due care which often translates into a duty to be warned.
o Intentional Torts
o Battery
o Assault
o False imprisonment
o Intentional infliction of emotional distress
o Defenses to personal invasion
o Property invasion
II. (2) Breach of Duty
A. (2)(A) Learned Hand Formula (“LHF”)
1. Did D breach its duty under LHF?
o Rule: To establish a duty of negligence, one must show that the burden
(B) of an adopted precaution was much less than the costs of severe
injury or loss (L) times the probability of the injury occurring, a
reasonable person would adopt the precautions.
o Where costs of precaution is less than the costs of severe injury times the
probability of injury occurring, a reasonable person would adopt the
precautions
o (2)(A)(1) How expensive would precautions be?
 Essay Prewrite: Here, the B would be the costs of [insert facts i.e.,
Mona replacing the shower doors and also putting other tenants’
plumbing and electrical problems aside to contact the glass
contractor].
 It may very well be if the burden of adopting the precaution is
expensive, then they will not adopt it
 IF the expense of precautions is less the expectation value of the
injury, then the court will conclude that the owner hand duty that
was breached
 B = burden or the money that has to be put out for the precaution
o (2)(A)(2) How likely is it that D [insert facts that D is being sued for,
i.e. not providing adequate shower doors with frames and contacting
the glass contractor soon enough] would result in P’s injuries?
 Essay Prewrite: Here, the probability (P) harm and/or death is
heightened when [insert facts i.e., the shower doors shatter].
 P = probability of harm
 Sometimes if the burden is higher than the magnitude of the harm
then they do not have to adopt the precaution and they will not be
liable
o (2)(A)(3) How big of an injury did it cause
 Essay Prewrite: Given the potential magnitude of harm pose to
[insert facts i.e., tenants living within property owned by Mona that
lack adequate shower doors with frames] and the significant harm
resulting in P’s injuries [insert facts – P’s injuries i.e., several severe
gashes on her arm and began to bleed profusely), it is fair to
conclude that a reasonable person would have adopted precautions
under this formula.
 Adopted through risk v. utility test
 L = magnitude of loss/harm
 Sometimes if the burden is higher than the magnitude of the harm
then they do not have to adopt the precaution and they will not be
liable
 Where the risks that a particular act presents is greater than the
utility of the act, it constitutes negligence since a reasonable person
would adopt the precautions against the risk the act presents
 This is saying the probability is low but the loss is significant
 Gravity of loss outweighs the utility of having a person open the
pipeline or not doing whatever it is that they are doing
o If there is deliberate indifference to human life, then we may set aside
the learned hand formula
 Side note: N/A when it is about children. Deliberate indifference
courts are less likely to follow the learned hand formula.
o Punitive damages are not allowed in negligence unless a conscious
disregard to human life (reckless) except when it posts serious bodily
harm or death
o Ford Case:
 Ford knew that by putting the gas tank so close to the rear of the car
that it would cause an explosion so what is problematic about that?
 They didn’t do anything to fix it
 But they engaged in a cost benefit analysis whether it was worth
doing a recall or not by doing the learned hand formula
 What would be the cost if they recalled all of the cars?
 They knew of the risks
 Interoffice memo proving they had knowledge of the problem before
 However, it would cost more money for them to recall all of the cars
$137.5 million
 Under Learned hand this would not be a breach of duty because the
burden on Ford to recall the cars would be very expensive
 B=137.5 million < P x L=49 million
 Court agreed that in this case it was really egregious
 Ct. didn’t like the way this was done (using learned hand video)
 There was malice in this case because they had prior knowledge of
the conscious disregard
 Limit to this formula
B. (2)(B) Res Ipsa Loquitor (“RIL”)

1. Rule: RIL requires the satisfaction of the following elements: (1) The
accident does not occur in the absence of negligence; (2) The D had
exclusive control over the instrumentality; and (3) The P did not
contribute to her own injuries. Subsequently, all three elements must
be met in order to use a RIL theory in trial.
o (2)(B)(1) The accident does not occur in the absence of
negligence
 The thing speaks for itself
 Negligence is so clear on its face you do not need proof
 Things just don’t happen unless someone is negligent
o (2)(B)(2) The D had exclusive control over the instrumentality
 D has some superior knowledge more so than the P
 Compensate for the P being disadvantaged
 D is in a better position to know what happened because they know
more so than the P so they should be able to prove
o (2)(B)(3) The P did not contribute to her own injuries
o Jurisdictional distinctions establish duty, breach and/or factual causation
on
o RIL – What are the three means of proving a negligence claim?
o Direct evidence (caught on tape, eyewitnesses)
o Circumstance evidence (lack of direct evidenceconnect the dots by
piecing together)
o Shift the burden from the P to the D
o RIL is a doctrine that applies to cases when there is little doubt that the D
is at fault
o Example:
 For example, barrels don’t just fall by themselves in the absence of
negligence. RIL shifts the burden of proof to the D by saying “this
doesn’t happen unless there’s negligence. “RIL is intended to cure
the unfairness of the D’s superior knowledge. However, it’s a
double-edged sword and it could result in actually creating
unfairness. RIL is a last resort claim. Only rare cases trigger RIL. If
you have direct evidence in regard to the alleged negligence, you
don’t need and won’t get RIL.
o Don’t want to apply this unless it is last resort (so powerful)propriety
and objectivity don’t want to show favor to the P
 Give justification for burden shift
 If there is direct evidence, then you don’t need res ipsa
2. Jurisdiction
3. Rule Continued: Thus, notwithstanding direct evidence, a court may,
depending on the jurisdiction, do one of three things:
o (1) Permit a jury infer D acted unreasonable
 1. RIL creates a permissible inference of negligence: the jury can say
“we agree with you and find for you” or “we disagree with you and
find against you
o (2) Find or reject negligence if D rebuts the inference
 2. RIL creates a rebuttable inference of negligence that the jury can
reject: the D must affirmatively rebut the inference or lose
 can go to jury
 D has to rebut the inference
o (3) Completely shift the burden from the P to the D to prove the
absence of negligence
 3. RIL created a presumption of negligence and shifts the burden of
proof to the D: the D has to prove that they didn’t do it
 not just an inference they have to prove all of the elements are not
satisfied for negligence
 Whole thing shifts (no duty no breach no causation etc.)
C. (2)(C) Negligence Per Se
1. Rule: The majority states that an actor is negligent if, without excuse, the actor
violates a statute that is: (1) designed to protect against the type of accident the
actor’s conduct causes and/or (2) if the accident victim is within the type of class
the statute is designed to protect.
o (2)(C)(1) Type of harm
 1. Is this the type of harm the statue was intended to protect?
 Example: Here, the statute was enacted to [insert fact that states why
statute was enacted i.e., protect against severe damage to the State’s
agricultural economy].
o (2)(C)(2) Class of persons
 2. Is this w/in the class of persons that the statute is designed to
protect?
 Example: Here, the statute was created to [insert fact that states why the
statute was created i.e., protect those employed in agricultural jobs].
o Conclude
 Example: Thus, because the type of harm and class of persons is not
satisfied, negligence per se is not met.
o (2)(C)(3) Minority
 Rule: However, the minority states that a jury may use D’s violation as
evidence (in addition to other provided evidence) that D’s behavior
constitutes a breach.
o (2)(C)(4) Exception
 Rule: The restatement excuses noncompliance when:
 (1) the violation is reasonable because of the actor’s incapacity
 (2) the actor neither knows nor should know of the occasion for
compliance
 (3) the actor is unable to comply after reasonable diligence
(impossibility defense)
 (4) The actor is confronted by an emergency not due to his own
misconduct
 (5) if the actor complies, greater risk of harm would result
2. Violation of statue and negligence per se means the same thing
3. This is the doctrine that says you can use a statue from any general area of
law and pull it into a torts lawsuit to establish a breach of duty
4. Show that the statue was violated
5. Must make use in order for it to be relevant it must satisfy the 2 elements
above
6. If 1 of the elements is missing you cannot use this doctrineboth must be
met, if and only if are they both met can you use the stat.
7. An actor is negligence if, w/o excuse, the actor violates a statute that is
designed to protect against the type of accident victim in which the P is w/in
the protected class of persons
8. An actor is negligence if, w/o excuse, the actor violates a statute that is
designed to protect against the type of accident the actor’s conduct causes
9. Majority Broken Down:
o Most courts hold that violation of a relevant statue is prima facie
(negligence on its face) negligence or negligence per se (negligence by
law).
o This means that if no evidence is introduced by D to excuse the
violation, then D’s negligence is conclusively established.
10. Minority Broken Down:
o In some jurisdictions, violation is merely evidence of negligence, which
the jury can consider along with all other evidence in determine whether
D was negligent.
11. Example:
o Cases:
 Osborne v. McMasters:
 Statue in this case required them to label the bottle of poison
 Type of harmdeath
 Type of victimprotect against these cases
 Ney v. Yellow Cab:
 Antitheft
 It was w/in the type of harm the statute was trying to protect theft
 Zeni v. Anderson:
 Idea that if she can have an excuse
 Dangerous area
 Fact that she may have been walking on the opposite side of the
traffic
12. Rationale – why we have NPS
o 1. It would be weird for a court to approve conduct as reasonable if it
violates a criminal statue;
o 2. If the leg. set the standard of care, you don’t need the jury to say what
behavior is reasonable. In other words, there is better evidence of society
views on what behavior is reasonable and unreasonable
III. (3) Causation
IV.
A. (3)(A) Factual Cause
1. Is D the but for cause of P’s injuries?

(3)(A)(1) **BUT FOR TEST**
o Rule: Under this test, it must be shown that P’s harm would not have
occurred “but for” the D’s act. In order to be considered a “but for” cause
in negligence, it must satisfy the preponderance of evidence standard that
P’s harm would not have occurred if D was negligent.
o Example: Here, it can be said that but for Mona’s lack of providing
adequate shower doors with frames and waiting a week to contact the
glass contractor, Susan would not have been injured from the shattering
shower doors. However, because Susan took baths in the morning and
avoided the dangerous shower, she should have known not to use the
shower on the morning she decided to use it because she was running
late for work.
o Conclude
 Nonetheless, we can conclude that Mona is indeed a but for cause of
Susan's severe injuries.
o (1) The “but for” test (“Sin Qua Non” test)
 (a) single cause or
 under this test, it must be shown that P’s harm would not have
occurred “but for” the D’s act. Note that the “but for” test does not
necessarily impose liability since considerations (such as legal duty
or foreseeability) other than causation may prevent it
 asking you to ask this q “assuming the D is not neg. would the P
have been injured anyway?”
 if the answer is yes there is not factual causation if the answer is no
then there is factual causation
 counterfactual Rule
 but for the test applies where there is a single cause. The
counterfactual scenario must be addressed.
 Under this test, it must be showed that P’s harm would not have
occurred “but for” he D’s act
 there can be multiple “but for” causes of an event. D1 cannot defend
on the grounds that D2 was a “but for” cause of P’s injuries as long
as D1 was also a “but for” cause, D1 is viewed as the “caused in
fact” – see substantial factor test
OR
(3)(A)(2) **SUBSTANTIAL FACTOR TEST**
o Rule: Under this test, it must be shown that if D’s conduct was a
substantial factor in causing P’s injury, she will not be absolved from
liability merely because other causes have contributed to the result.
o Example: Here, it can be said that the substantial factors of Mona’s lack
of providing adequate shower doors with frames and waiting a week to
contact the glass contractor contributed to Susan’s injuries when the
shower doors shattered. However, because Susan took baths in the
morning and avoided the dangerous shower, she should have known not
to use the shower on the morning she decided to use it because she was
running late for work.
o Conclude:
 Nonetheless, we can conclude that Mona’s actions were a substantial
factor in causing Susan’s severe injuries.
o (2) the substantial factor test
 (a) multiple redundant cause or
 multiple Causes where each D could have caused the injury
 If the D’s conduct was a substantial factor in causing the P’s injury,
it follows that he will not be absolved from liability merely because
other causes have contribute to the result, cine such causes,
innumerable, are often present. IN particular, however, a D is not
necessarily relieved of liability because the n negligence of another
is also a contributing cause, and that person too, is to be held liable
 As long as each was a substantial factor cause
 Apply this when there are multiple causes
 Where the actor is a concurrent substantial factor in bringing about
the harm, the actor is liable for such harm notwithstanding other
concurrent causes. See Anderson case
(3)(A)(3) **SUMMERS V. TICE APPROACH**
o Rule: where multiple D’s are negligent, but it’s impossible to tell which
D injured P, the burden shifts to each individual D to prove that her
action wasn’t the cause in fact of P’s injury; if no D can meet the burden,
they will be liable
o Multiple D’s but don’t know which D is responsible so we shift the
burden to the D for them to prove that they are not liable
o Where an injury is caused by the negligence of two or more persons, and
the P cannot determine which one caused the harm, the burden of proof
is shifted to the D such that each must show that he did not cause the
harm. Absent such a showing all D will be liable.
o If and only if the D can prove that they are innocent then they will not be
held liable
o D will present exculpatory evidence
o Twist if they are all held liable they cannot disprove that they are not
liable but they will be held in proportion to whatever they pay in the
market
o Only one of these tests will apply
B. (3)(B) Proximate Cause
1. Is D the proximate cause of P’s injuries?

o Rule: The rule states that proximate cause is satisfied when P’s harm is,
in hindsight, foreseeable from D’s original act of negligence. Rules of
proximate or legal cause limit D’s liability to persons and consequences
which bear some reasonable relationship to D’s tortious conduct.
Proximate case rules take into account the following elements: (a) the
remoteness in space and time between D’s act and P’s harm; (b) the
likelihood that P’s harm would result from D’s act; and (c) intervening
causes.
o Example: Here, the injuries P sustained from the shatter glass was a
foreseeable consequence of Mona breaking her contract to voluntarily
repair the shower doors.
o (3)(B)(1) The remoteness in space and time between D’s act and P’s
harm
 Example: Given the remoteness in space and time between Mona’s
act of promising to call the glass contractor and Susan’s harm (four
days later), the shower door causing injuries to Susan do not seem
close in time.
o (3)(B)(2) The likelihood that P’s harm would result from D’s act
 Example: The likelihood that someone would sustain injuries from a
defective shower door because of a landlady’s failure to comply with
custom and also failure to contact the glass contractor within a
reasonable time is very likely.
o (3)(B)(3) Intervening causes
 [Causes to consider]
 (1) Third Parties
 Rule: This involves negligence by 3rd persons.
 (2) Weather
 Rule: This involves foreseeable weather conditions
 (3) Self-Inflicted Harm
 Rule: This involves P’s self-inflicted harm while insane
caused by D.
 (4) Acts by rescuers
 Rule: Under the rescue doctrine an injured party may
recover damages for an injury sustained in a rescue or
attempt from the original tortfeasor if it can be shown
that it was the original tortfeasors negligence that placed
the rescued person in peril and that the rescuer suffered
injuries in the rescued or attempt
 As long as rescuers aren’t reckless, they are considered
foreseeable victims of the act that put the initial victim in
peril
 “Danger invite rescue”  If a D owes a duty to
someone, they usually close??? owe a duty to any other
person who comes to the rescue of the person in danger
unless the person was grossly negligent
 (5) Mitigation
 Rule: This involves efforts by P to mitigate the effects of
his injury
 (6) Health/Injuries
 Rule: This involves disease or subsequent injuries
resulting from the impairment of P’s health caused by the
original injuries
 (7) Criminal Conduct/Intentional Torts
 Rule: This involves criminal conduct or intentional torts
by third person, provided D’s conduct exposes P to a
greater than normal risk of such conduct, or if the
exposure to such risks is what makes D’s conduct tortious
 Example: Here, although Susan lacks a pre-existing health issue,
because the type of harm Susan suffers is reasonably foreseeable, the
extent of the harm does not need to be foreseeable.
 An intervening cause is conduct by some 3rd person for an event
which occurs either D’s tortious conduct, and which join with D’s
negligence to produce P’s injury
 If the harmful result or consequences P suffers were of the type of
harm which D could foresee the intervening cause will not operate to
relieve D of liability even if harm was brought about in an
unforeseeable manner of greater extent of harm was sustained
 D usually says, “I’m not the responsible cause, this intervening event
is responsible”
 But if the P is harmed because D didn’t put boundaries up it doesn’t
matter what happens in b/w  P was only injured because there
wasn’t a fence placed up
 If this type of harm is foreseeable then it is proximate harm there is
liability
 All in all, negligent D’s are liable for intervening acts, as long as
these acts are reasonably foreseeable.
 Under common-law intrafamily tort immunity (now abandoned in
the majority of states) would not hold D liable for his negligence
 Example: Derid. Case
 There was an intervening event that occurred
 It was fore. that if there are no barriers an accident may occur
 It is not a superseding cause because it was foreseeable that a p
that is working at a construction
 Negligent D’s are liable for intervening acts so long as they
are reasonably foreseeable including attempts to remedy
dangerous situations
 Breaks the chain of causation but what we are seeing here is an
exception…so if there was an intervening event that was criminal
or tortious but if the D’s originals act makes it more likely to
happen then it may be a foreseeable type of harm
 (A) Superseding Causes
 Rule: Unforeseen Acts of God (i.e. sudden earthquakes, lightening
on a clear day—will not always be unforeseen i.e. hurricane
Katrina and the engineers building weak levees = negligence
design). Gross negligence, unforeseen weather conditions,
unforeseen intentional torts/criminal acts.
 Gross neg. is not foreseeable it is a superseding cause
 Unforeseen suicide (not occasioned by insanity directly caused by
D)
 Unforeseen criminal conduct (i.e. murder)
 Example:
 Intervening cause
 D’s negligent action:
 D negligently keeps a lighted flame next to a gas outlet
 Intervening Cause occurs in unforeseeable manner:
 IF A negligently keeps a lighted flame next to a gas outlet, and
a rat’s fur becomes ignited by the flame, then the rat
approaches the gas outlet
 Foreseeable type of harm to P from actions:
 An explosion that injures P is a foreseeable type of harm
keeping a lighted flame next to a gas outlet. D is still liable to
P
2. Conclusion:
o Thus, although elements (b) and (c) are satisfied, because element (a) is
not satisfied Mona is not the proximate cause of Susan’s injuries.
 Overall Conclusion: Accordingly, despite the satisfaction of factual
causation, because proximate causation is not satisfied, Susan’s negligence
claim against Mona fails.

Torts I Outline Without Damages and Defenses For Negligence

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Torts I Outline Without Damages and Defenses For Negligence

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Torts I Outline

C. Framework Broken Down

d. (2) Requisite Intent to Commit Battery

A. Assault occurs when D’s actions result in an apprehension of an imminent

C. Framework Broken Down

C. Framework Broken Down:

A. The defendant’s act must be extreme and outrageous in causing severe

C. Framework Broken Down

C. Framework Broken Down:

A. An unauthorized act that results in an interference (meddling) with Plaintiff’s

C. Framework Broken Down:

A. Overarching rule for conversion is an Unauthorized act that results in a substantial

C. Framework Broken Down:

3. Framework Broken Down:

3. Framework Broken Down:

C. (2) Reasonable amount of force (Excessive and Deadly)

D. (3) Reasonable mistake will not negate defense

E. (4) Does Defendant have duty to retreat?

F. (5) Self-Defense and Transferred Intent

G. (6) Initial Aggressor’s Self-Defense

3. Framework Broken Down:

3. Framework Broken Down:

3. Framework Broken Down:

B. Analytical Framework Broken Down:

i. Did D owe P a Tarasoff duty?

i. Use this in place of Cardozo and Andrews Test

Nonetheless, based upon common knowledge of specific dangers regarding off-track

(H) Landowner Duties

B. (2)(B) Res Ipsa Loquitor (“RIL”)

III. (3) Causation

1. Is D the but for cause of P’s injuries?

1. Is D the proximate cause of P’s injuries?

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