INTENTIONAL TORTS

Intentional Torts to Persons

Transferred Intent applies to Battery, Assault, False Imprisonment, Trespass to land, Trespass to Chattels

1. BATTERY

Elements:
1. Intent to make harmful or offensive contact; (and) must appreciate the harmfulness or offensive of touching
2. Offensive or harmful touching of the plaintiff
(Liable only if no applicable defenses such as consent, or self-defense apply)

You can still be liable even if you are not substantially certain because you have knowledge or purpose

- If you meet the elements of harmful or offensive contact, you will have to pay nominal damages

Intent: (1) knowledge or purpose or (2) be substantially certain

Single Intent: intent to make contact

Dual Intent: intent to make contact AND it be harmful or offensive

Child Liability:
- Parents are not vicariously liable for the torts of their children
- Kids can have knowledge for intentional torts

o Majority Rule- most states children will be liable

o Minority Rule- immunity to “young child” under 6 years old

Mental Impairments do not negate intent

2. ASSULT
Elements:
1. Intent- Act intended to cause imminent apprehension for harmful or offensive contact; and
2. Causation- Act caused apprehension in victim that harmful or offensive contact would occur

- Anticipation does not have to be fear!

- Fear of bodily harm; No physical contact must take place

Imminent apprehension of bodily harm or offensive contact intends to touch party B in a harmful or offensive way- and
party B apprehends such contact
Test: D> Act intended to cause apprehension & P> act caused apprehension

3. FALSE IMPRISIONMENT one individual unlawfully confines another person against his or her will
Elements:
1. Actor intends to and does confine another
2. Within boundaries fixed by the actor actual confinement
3. Victim is conscious aware of the confinement or harmed by confinement

- Implicit and explicit threats are sufficient to demonstrate confinement

 - False imprisonment occurs when a tortfeasor, using any means of duress, intentionally confines a victim in a boundary
fixed by the tortfeasor, and the victim is either aware of or harmed by the confinement.

4. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS Extreme or outrageous conduct that intentionally or

recklessly causes severe emotional distress to another; the intent or cause emotional harm
Elements:
1. An intentional or reckless act
o P has the BOP:
 D intended to cause severe emotional harm OR
 D acted w/ reckless disregard of weather P would suffer harm
o D intended to cause severe emotional harm if:
 D acted with purpose OR
 D acted with substantially certainty harm would occur
o D acted with reckless disregard if:
 D knows of the risk of severe emotional harm & fails to take precaution to eliminate/ reduce risk
 Cost/Benefit
- Exceptions:
- Insensitive or rude behavior
- Insults or threats
- Annoyances
- “Petty oppressions”

2. Extreme or outrageous in nature

 Matter of law where the judge determines to give the instruction and the jury will deliberate the facts
o Frequency
o Asymmetrical Relations (Power Dynamic )
o Knowledge of Special Vulnerability

3. Causal Link— but for D conduct and

4. Severe emotional distress suffered by P

- A party is liable for intentional infliction of emotional distress only if the party’s conduct is so outrageous and
extreme that it goes beyond all possible bounds of decency and is regarded as utterly intolerable in civilized
society

- The regularity and severity of abuse and threatening conduct can bring behavior into the realm of
extreme and outrageous conduct—systematic abuse & humiliation

- Actor may also be liable for IIED to the immediate family of the affected if they were present at the
time of the extreme and outrageous conduct.
o Exception: Terrorism is sufficiently extreme and outrageous, and the requirement is not imposed

Intentional Torts to Property

Intent to be on the land is enough

No harm = nominal damages

1. TRESSPASS TO LAND
D need only have intent to enter the land, mistake of fact is not a defense.
Note: Animals are property, you have responsibility for your animals, the hard part to prove is intent.

2. TRESSPASS TO CHATTEL
When A intentionally interferes on Ps Personal Property, w/o permission, causing harm to P
An act short of conversion : Short of dispossession- more rapid/transient

Elements:
Defendant intentionally interferes with P personal property.
Without Plaintiff’s Consent
Plaintiff harmed by interference, actual damage

3. CONVERSION
When A exercises substantial dominion (interfered with the owner’s ability to control it) over B’s item and interferes w/
B’s ability to control it.
- Good faith or mistake is no excuse when you intended to interact with that item

Elements:
Defendant intends to exercise substantial dominion over chattel/item.
Owner by Plaintiff; and
Seriously interferes with Plaintiff’s domain/ability to control it

If you meet conversion, you will also meet the elements of trespass to chattels b/c it seen as more minor.

Defenses (Privileges) To Intentional Torts

Consent
- Power Relationships can affect consent
o (Ex. teacher-student, guard-prisoner, employer-employee )
o Minors (they do not have the legal power to consent)
o Incapacity (minors or adults because of their health or medical situations)
- Doctors exceeds scope of consent = medical battery
- Guardian may provide consent on behalf of a minor or incapacitated adult
NOT A DEFENSE when:
- procured by fraud
- it has been revoked
- P is in the furtherance of crime (courts divided)
- To sexual conduct when one knows or should know if STD and does not warn

Self- Defense
- A person my use reasonable force to defend against offensive contact or bodily harm if they reasonably believe
it is about to be intentionally inflicted among them
- Reasonable Mistake does not invalidate the defense
- Deadly force only ok when reasonable belief of serious bodily injury or death is about to be intentionally
inflicted
- Not required to retreat before using force
- Initial aggressor only entitled to claim if other party responds to non-deadly force with deadly force
- Not liable for injuries to third parties so long as it was accidental

- Justified to defend himself from imminent harm

- Not in revenge or retaliation

- Proportional (reasonable force)

Defense of Others
- Reasonable force in the defense of others is justified if the defended party would be entitled to use self defense
- The person being defended does not have to be a family member
- Not liable for acting on mistaken belief as long as it is reasonable

- Defendant’s act must be Justified to defend 3rd party from imminent harm

- Not in revenge or retaliation

- Proportional (reasonable force)

Defense of Property
- No deadly force to protect property, No spring guns, or mechanical traps
o Does not apply to a person’s home because of the castle doctrine, which allows the use of force to
prevent a forcible entry and protect his own safety, so long as it is reasonable.
- Life> Property

Arrest and Detention

Shopkeeper’s Privilege must have: (1) reasonable cause to detain, do so in a (2) reasonable manner and time (3) for the
purpose of questioning or calling the police
- Use of force never privileged unless asked to remain AND resistance made it necessary for the arresting person’s
protection

Necessity
- Under private necessity you still must pay for any harm or damage that you have caused
- In public necessity there is no payment

Public Necessity Private Necessity

(Surocco v. Geary, fire case] (Vincent v. Lake Erie, boat on private dock during storm]

Act of public official; Act of private individual

Trespass/damage private property; Trespass/damage to private property
Under apparent necessity (reasonable); and Under apparent necessity (reasonable); and
Seeks to advance a public good/interest Seeks to protect private interest (property/self)

Discipline
Parents my use reasonable force as they reasonably believe necessary to discipline children
Educators have same privilege, unless parent declines
 Prima Facie Case for NEGLIGENCE
Elements of Negligence
Any conduct where actor fails to meet duty of care, creates an unreasonable risk of harm and is the cause of P’s injuries
Elements:
1. D owed P a Legal Duty
2. D Breached Duty of Care
3. P Suffered Actual Harm
4. Factual Causation (or Actual Cause) [must have 4 to establish 5]
5. Proximate Cause

To sustain a claim against a defendant for standard negligence, the plaintiff must show that the defendant owed the
plaintiff a duty of care and breached that duty so as to cause an injury from which the plaintiff incurred damage.

D owed P a Legal Duty

General Duty/ Ordinary Standard of Care is RPP

- Standard of care is unchanging “reasonable care” under the circumstances, the circumstances change.

When does RPP consider characteristics of D?

What RPP does not consider… What RPP considers…
Mental Illness/ infirmities Exceptional physical ability
Insanity Specific area if expertise
Low Intelligence Advanced area of knowledge
Intoxicated Strength
Intelligence
Physical limitations/infirmities
- Child Standard of care is usually what a child of the same age, intelligence, and experience would conduct
themselves (basically what would that child have done) [unless Adult Activity] then RPP.

Negligence As a Matter of Law- Court concludes that RPP cannot find otherwise (Result: Directed Verdict)
Contributory Negligence- When P does not meet standard of care, and his actions(s) help bring about harm/injury

Negligence Per Se (NPS)

(Plaintiff friendly doctrine) act is considered negligent because it violates a statute/law

Elements:
(1) Statute must clearly define a standard of conduct
(2) Statute must have intended to prevent type of harm D’s act/omission caused
(3) P must be a member of the class of a person’s statute designed to protect
(4) Violation of statue must have been proximate cause of injury

- Also plead straight negligence

- ALL NPS DOES IS REPLACE DUTY AND BREACH you still need to find causation and prove damages!
- Licensing statutes are excluded from NPS claims
o Lack of a license does not mean you are negligent BUT it could be used as evidence that you did not act
as an RPP

D Breached Duty of Care

- Duty is determined by judge, breach is determined by jury

 - Intent not needed for negligence, simply the inability to exercise ordinary care

√ Foreseeability of harm is a prerequisite for breach

o probability of harm
√ D not negligent if RPP cannot foresee danger
o unforeseeable then no need to take precautions against it

- Drivers owe their passengers a duty of care to prevent dangerous actions of a second passenger that are
reasonably foreseeable and if they do not, they are negligent.
- Someone confronted with a sudden emergency not of their own making is not negligent if that person acts
according to their best judgment
 Sudden-Emergency Doctrine: Person must act as would an ordinarily prudent person under the
circumstances
 Law & Life > property… Risk life for property that could be considered negligent

Slip & Fall Theories

1- D created and failed to take reasonable actions to abate hazard
2- D did not directly create but detected—or should have detected – a hazard created by others (constructive
notice), but failed to take reasonable steps to prevent injury b/c of hazard
3- D’s mode of business operation made it foreseeable that others would create dangerous condition, and D failed
to take reasonable measures to discover & remove it

In a negligence action, the appropriate standard to be applied to a defendant’s conduct is whether he objectively exhibited
ordinary care that a reasonably prudent person would have exercised under like circumstances, not a subjective standard
held by the defendant.

Violation of Common Custom

General Rules- Evidence that D violated custom of specific industry/community usually sufficient to get the P to a jury
- Proof of a general custom and usage is admissible because it tends to e=stablish a standard by which ordinary
care may be judged even where an ordinance prescribes certain minimum safety requirements which the
custom exceeds.
- A business may be liable for failing to adopt new technology, even if the industry has not widely adopted it, if the
use of the technology constitutes reasonable prudence.
- Takeaway: Custom does not set the standard of care. It can be used as sword or shield.
- Industry custom not enforced legally

Failure to comply with fire code or a similar regular constitutes prima facie negligence. Yet, compliance with
regulation does not constitute due care per se.
- Statute is the minimum standard
- Compliance does not free you from negligence
- You can’t use compliance with a statue as a defense

Unspecified Negligence: Res Ipsa Loquitur “the thing speaks for itself”

- Indicates a presumption of negligence

- Negligence is more than probable than not caused by D’s actions
- If you can have an alternative theory about what happen them, you don’t have a res ipsa case
- Shifts burden to D to show why they were not negligent

Elements:
(1) Accident which produced injury was one which ordinarily does not happen in absence of negligence
(2) Device or agent which caused accident was under exclusive control of D (control rule)
 (3) Circumstances indicate that negligence was not caused or contributed to by P

- If injury of a type that does not typically occur without negligence does occur, negligence is presumed from the
mere fact of the occurrence. (Ex. something falling from the sky
If you can write a detailed report of what happened then, it is NOT a Res Ipsa case.
If you can point to what the defendant did that the plaintiff said is negligent, NOT a Res Ipsa case.
Res Ipsa, we don’t have enough evidence to do a usual negligence analysis.
- Res ipsa can apply even when the plaintiff’s negligence contributed to the injury but if comparative faut
jurisdiction then you don’t need the 3 rd element of res ipsa

P Suffered Actual Harm (Damages)

A breach of duty w/o harm does not give rise to negligence

- If P shows that D was negligent, but no actual damages resulted; P will lose case
- P must suffer a legally cognizable harm
o Physical Harm
o Property Damage
o Pecuniary Harm (lost wages, etc.)
o Psychological Harm
o Emotional Harm – can be tacked on but not recognized as actual harm for negligence cases
 IIED or NIED

Factual Causation (or Actual Cause) “Cause in Fact”

Factual Causation
BUT FOR-TEST majority test
- If the Injury would not have occurred w/o D’s tortious act or omission, breach then D’s conduct is the factual
cause of the harm.
- How we determine who is liable for negligence

A plaintiff must show causation in fact to succeed on a negligence claim, by proving that the harm would not have occurred
but for the defendant’s negligence.
There can be more than one But-For cause in a situation

2 Actors Causing Sperate Injuries-- Liability will be apportioned by causation

o Tortfeasor will be liable for the harm they cause and no more
2 Persons Causing a Single Injury-- Fault may be approportionate by liability or joint and several liability depending on
jurisdiction
Aggravating a Preexisting Injury—D only liable for aggravation, not entire preexisting injury

Alternatives to the But-For Test:

Substantial Factor Test minority view
requires that a plaintiff prove that the defendant’s alleged act or omission was a substantial factor in causing the plaintiff’s
injury, even if the injury may have occurred anyway.
- Was D’s breach a substantial factor causing the harm suffered by P?
- If it was substantial factor, D will be held liable unless he/she raised sufficient defense(s)?
- Generally used when there is 2+ actors and but for test fails
- DO NOT USE FOR EVERY MUTIPLE DEFENDANT CASE

Actual Cause
 Factual Issue
  Must link D’s negligence to the P’s injury

Alternative Causation Unusual rule, can refer to it as Summers v. Tice Rule

 Significant case because burden of proof shifting
o Can’t figure out who is liable so unless more info is given, you both are liable
 Alternative causation can only be used when both parties are negligent and only one could have produced the
harm
 Both parties must be negligent
-
“Loss Chance Doctrine” minority rule
- Use if you see a worsening condition or % of recovery
- In Washington, a plaintiff asserting a claim for medical negligence may show, in place of the “but for”
causation requirement, that the defendant’s action was a substantial factor in causing the plaintiff’s injury.
- medial negligence is always foreseeable
- Increase of future harm NOT equal to actual harm b/c not a present injury

Proximate Cause (Scope of Liability)

*There must be factual cause for proximate cause to exist, and if factual cause exists, then proximate cause exists
unless there is an intervening act.
Scope of Risk
RULE: D’s liability is limited to harms that result from foreseeable risks and to foreseeable P’s
Q1: Is risk within “foreseeable hazards”
Q2: Is P within class of foreseeable P’s
- Proximate Cause is a Legal Issue
- Manner of harm is immaterial to determining the proximate cause of P’s injuries.
- A person must take precautions against an event only if it is reasonably foreseeable that the event will cause
injury.

Palsgraf
Cardozo (majority): D is only liable to P’s who are in the zone of reasonably foreseeable harm
Andrews (minority): If D can foresee harm to anyone as a result of their negligence, then a duty is owed to everyone
(foreseeable or not) harmed as a result of the breach. [Proximate Cause]

The Rescue Doctrine

Elements:
(1) D placed victim in danger
(2) Rescuer reasonably believed victim was in danger
- Rescuer can recover from D
- D breach may harm victim and rescuer, this rule does not apply to property

Harm Outside the Scope of Risk

Eggshell Plaintiff
“D takes the P as he finds he find her”
- Plaintiff has an extremely weak physical infirmity
- RULE—the fact that harm was much more than anyone would have expected does not limit his liability
(full extent of harm)
o Must be the kind of harm that would hurt ordinary person

Intervening Cause
 - Event between the initial act and the final result in a chain of events, that changes the course of events
– and therefore the connection between the initial act and the injury
o Negligent Acts – subsequent negligent act
 An intervening act of negligence isn’t a superseding cause when it is a foreseeable
result of the defendant’s negligence
 Third party negligence becomes superseding cause only when the act is extraordinary,
not foreseeable, or completely independent of the defendant’s negligence.
 A negligent actor may be held liable for harm only if the actor’s negligence was the
proximate cause of the harm.
 Negligence may be considered the proximate cause of injuries if those injuries occur
after the actual negligence but are foreseeable consequences of that negligence.
o Intentional Acts – subsequent intentional tort
o Criminal Acts- subsequent violation of a law
 A negligent defendant is not relieved from liability by the intervening acts of a third party if
those acts were reasonably foreseeable by the defendant at the time of the negligent
conduct. 
 Not all criminal acts are superseding
Superseding Act
- “A superseding cause breaks the causal chain” & relieves the defendant of liability When an
unforeseeable intervening actor or act breaks the proximate casual chain and supersedes it, and
relieves initial tortfeasor of subsequent liability
- Exception: if an intervening act lies within the scope of foreseeable risk or has a reasonable connection
to it then it is not a superseding cause

Suicide as An Intervening Act | Majority Rule

- If a P intentionally attempts to commit or commits suicide, that acts is a superseding cause of P’s harm,
freeing D from liability for negligence
Exceptions:
(1) D’s tortious conduct causes mental illness or an uncontrollable impulse in P, which leads to suicide (or attempt)
(2) There is a special relationship between 2 parties, and D knows of the P’s propensity for suicide

Suicide is usually a superseding act unless you had special relationship to the person, induced it, or taking
advantage of a vulnerable person; something that is unforeseeable that cuts off liability
 DEFENSES TO NEGLIGENCE
Plaintiff’s Fault
Contributory Negligence
When a plaintiff fails to use ordinary care in avoiding an obstruction caused by a defendant, the plaintiff may not
recover damages from the defendant.
P totally barred from recovery – complete all or nothing defense
- Not available to school districts in cases against children

4 Exceptions to Contributory Negligence Bar

(1) The Rescue Doctrine
o Rescuer reasonably believed victim was in danger
o Exception: cannot act recklessly while rescuing
(2) Last Clear Chance (discovered peril)
o If D discovered or should have discovered P’s peril and could avoid it but did not, then P’s earlier
negligence would not bar or reduce P’s recovery
o Defense is eliminated of D didn’t exercise the last clear chance
(3) D reckless or Intentional Misconduct
o Con. Neg. is no defense to an intentional tort or willful, wanton, or reckless torts, involving
conscious disregard for safety of others
(4) D’s illegal Activity
o P cannot recover if injury is a direct result of knowing and intentional participation in a criminal act

Comparative Fault/ Negligence (Modern Approach) JURISDICTION FOR EXAM

Divides liability between P and D based on their relative degrees of fault.
P is not barred from recovery by his contributory negligence, but recovery is diminished by P culpable fault
Fault divided among all culpable actors
If one D is insolvent, the other is capped

Policy Reason for baring plaintiff recovery when they participate in illegal activity is to discourage illegal activity; split
TX S Ct.: Comparative Fault should be used in light of the act, liability must be apportioned, not barred, when P
committed an illegal act

- Children are incapable of comparative negligence

RULE: Public policy concerns dictate that minor children do not have a legal duty to protect themselves from sexual abuse
by their schoolteachers.

Assumption of Risk
a legal defense by the D, which can bar or reduce a P’s right to recovery against the D if the D can demonstrate that the
P voluntarily and knowingly consents to the risk by participating in a dangerous, or potentially dangerous, activity.
 More than contributory negligence – knowledgeable decision to assume risks involved with an activity (mental
state higher)
- Often when there is express assumption of risk there is also implied assumption of risk

Express Assumption of Risk

Contractual Agreements
- Essential Service Waivers are not usually considered voluntary
o Informed consent but it’s not valid because there was no consideration
o imbalance of power, against public policy
- A signed waiver and release will not preclude liability for negligence if the danger was unrelated to the
inherent risks of the activity and could be eliminated or mitigated through the exercise of reasonable care.
 Look at language and scope if wavier
- Waivers that conflict with public policy will be unenforceable
 o Case-by-Case assessment of what defies public policy
o Pre-Injury releases – majority of states stricken them down
o Children – waivers for children generally unenforceable

Policy Reason to keep them even though invalid, so that people take precaution

Implied Assumption of Risk (More Common)

- A legislature’s adoption of comparative fault does away with the assumption-of-the-risk doctrine.
o Workers comp bars a negligence claim against your employer
- An employer does not owe a duty to protect a plaintiff-employee from ordinary risks inherent in the
plaintiff’s occupation.

Primary AOR: D has no duty to the P, completely bars P from recovery

Secondary AOR: Contributory Negligence, apportions lability between the parties—standard

Sports Cases
- Sports participants have an impliedly assume the risk of the sport and have no claim for negligence if
injury results from those inherent risk
- Inherent risk does not include those created by the D’s negligence
- Co-participants owe a duty to avoid intentionally or recklessly injuring each other
- Duty of Care should turn on the parties’ reasonable expectations
- Sometimes courts focus on player expectations that conduct will be unsafe
 Defenses Not on the Merits
Defenses made by a tortfeasor that are not linked to the specific facts of the claim. A defense arising from an external
source of law.

Statute of Limitations (SOL)

Definition – a statute mandating a specific time frame in which a legal (tort action can be brought forth. Claim barred if
brought after SOL expires.
RULE – SOL will not begin to run until:
 1 – All elements of tort or present, AND
 2 - Discovery Rule – P discovers, or as a RPP should have discovered
 (a) he/she is injured,
 (b) D had causal role connected to injury
SOL Policy Aims:
1 – Bar “stale” claims – loss of evidence
2 – Encourages P’s to advance claim while “ripe”
3 – Permit personal/business planning to avoid economic burden to tortfeasors
4 – Spurs immediate interaction between parties, facilitating settlement

- The statute of limitations for a tort claim runs from the date of injury and is not tolled
during settlement negotiations.
- SOL is a statute so you will use cannons of construction if ambiguity
- P has the duty to investigate

Exceptions to SOL

- Children (majority rule) – begin when child reaches age of majority (18).

- Ps with Disabilities (majority rule) – SOL tolls while P under a disability (e.g., mental incomp., unsound
mind).

o Rationale – cannot apply the RPP prong of the “discovery rule” to these classes of P’s

o Starts when you regain brain capacity

- Grace Periods – some jurisdictions extend the SOL.

o Grace period doesn’t stop the clock

o Minority Standard

Statute of Repose
Definition: a “pre-accrual bar,” in that it may extinguish a claim before the plaintiff even knows of it –and a statute of
repose trumps the discovery rule.
- SOL are subject to equitable tolling in certain circumstances, statutes of repose by their nature are not
- Policy reason, defendants should be free from worried about action after a certain amount of time, D
does not have unlimited liability
- Defendant friendly doctrine
RULES:
- A cause of action for medical malpractice accrues on the date of the act or omission giving rise to the
injury
- A statute of repose limiting the period of recovery for injuries resulting from improvements to real property
applies even if personal injury results from an inherently dangerous condition or latent defect of the property
caused by a contractor’s negligence.
 Harm & Damages
Types of Harm

- Physical Harm

- Property Damage

- Pecuniary Harm (lost wages, etc.)

- Psychological Harm

- Emotional Harm
o IIED & NIED can be tacked onto other tort claims
o All the defenses to intentional torts still apply here!
(IIED) See Intentional Torts to Persons #4

Negligent Infliction of Emotional Distress (IIED)

 Traditional “Impact Rule” — some courts did not recognize NIED, P must suffer physical harm (Mitchell v.
Rochester Railway, 1896: no recovery for freight alone)
 Zone of Danger Rule— only recovery if P is in the zone of danger for physical injury and the fear of physical harm
resulted in emotional injury
o “Immediate risk of physical harm” by D’s negligent conduct.

 Majority Stance: Courts recognize separate NIED claim

 Minority Stance: Small number of courts reject standalone NIED claim (Ex. Arkansas)

3 Doctrines for NIED

1. Majority Rule: Stand-alone claim.
 Minority Rule. Rejects stand-alone claims.
2. Minority: Physical Impact Rule
3. RPP Negligence Analysis (Added 2 new concepts):
 Serious or severe emotional harm AND Expert testimony or medical proof

Majority Rule Elements:

1. A negligent act

2. That causes … (But For analysis)

3. Serious Emotional Harm to another
4. Is Liable if:
a. Zone of Danger: D neg. placed P in danger of immediate bodily harm and emotional harm results OR
b. Relationships: the negligence occurred in the course of a specific categories of activities, undertaking
or relationships where negligent conduct is likely to cause serious emotional harm

RULE: (1) No recovery for freight alone (2) no recovery for consequences of freight.
RULE: Claim for NIED must show that the plaintiff was a direct victim of the defendant’s negligence because the plaintiff was
within the zone of danger created by the negligence

NIED claim 1st ask if P is a direct victim or bystander

1—P is a Bystander
Dillion v. Legg (Cal. 1968) Classic Bystander Case: Apply when you see bystander recovery
Facts: Mother and minor sister saw another daughter hit and killed by car.
RULE: A defendant’s liability for emotional distress caused to a plaintiff largely depends upon whether the harm was reasonably
foreseeable, and foreseeability can be evaluated by considering factors such as whether
(1) P was located near the scene of an accident as opposed to some distance from it,
(2) whether the shock alleged by P resulted from his sensory & contemporaneous observance of the accident, and (3)
whether P and the victim were closely related, as contrasted with an absence of any relationship or the presence of
only a distant relationship.

Duties of Care to Protect Emotional Injury Well-Being Independent of Physical Risks

2—P is a Direct Victim
A mother may recover damages for negligently inflicted emotional distress against a physician who entered into a doctor-
patient relationship with her for care during labor and delivery if her child is injured during the course of the delivery because
she is a “direct victim” of the physician’s negligent acts.
Burgess Trend – courts adopting position that NIED duty extends to to D’s who have a preexisting relationship with P
- Regular TORT negligence does not recognize emotional harm has actual (physical) harm
- Claims of NIED must place the P in real physical peril

Modern Trends w/ NIED

1. Majority NIED Rule
2. Physical Impact Rule
3. Emergent Trend: Conventional Negligence Analysis (Camper v. Minor)
P may recover damages for serious or severe emotional injuries if the plaintiff can satisfy the elements of general
negligence; (1) duty, (2) breach of duty, (3) injury of loss, (4) causation in fact, and (5) proximate or legal causation. 

Types of Damages
Damages recompense P for harms suffered
- A plaintiff can be awarded non-economic damages for past and future physical and mental pain and suffering,
inconvenience, emotional stress, and impairment of the quality of life.

Compensatory Damages - to help the victim recover what was lost

Damages for Personal Injuries

 Reasonably incurred medical costs

 Lost earning capacity or wage loss

 Pain and suffering (including mental)

 Medical monitoring to prevent prospective disease (limited cases)

 Any identifiable harm that results from tort

Punitive Damages- punish the guilty party

 Intent: you have to have gross negligence or willful wonton
 Policy Reason: Deterrence

Pain & Suffering

- Definition – physical and emotional stress caused from a tort.
- Distinct – from damages awarded for physical injuries
- Examples - aches, temporary/permanent limitations on activity, potential shortening of life, depression,
burns or scarring
Lost Earnings
Emotional Distress
Loss of Consortium
- a claim for damages suffered by the spouse (or family member) of a person who has been
injured/killed. As a result of the defendants’ negligent or intentional act
- the deprivation of benefits such as affection, companionship, and assistance that one family member is
entitled to receive from another.
- Distinct from NIED claims

Wrongful Death & Survival Actions

1. If injured person died – cause of action died with him (survival)
2. If D dies, P’s cause of action died with D (survival)
3. No separate cause of action for those dependent on deceased P (wrongful death statutes)

Statute of Limitations
Two years after the date if death to file a claim

Wrongful Death Actions

 Claim brought by close relative for wrongful death of decedent in pursuit of damages suffered by survivors

 Damages to directly to survivors

 Generally focused on pecuniary damages: Loss of Support (income)

 Today – entirely statutory

RULE: A decedent’s heirs at law may recover damages in a wrongful death action consisting of economic and non-economic
damages, including recovery for emotional distress and loss of consortium.
RULE: In a wrongful-death suit, a plaintiff cannot recover for the value of the decedent’s life or the loss of the decedent’s
enjoyment of life.

Survival Actions

 Claim brought by representative of estate, on behalf of decedent, for any claims the decedent would have had at
the time of death

 Damages go to estate first (then distributed)

 Today – entirely statutory

If both are recognized in the jurisdiction, there is no double recovery.

Damages Caps & Policy

- Damage Caps = laws that limit the amount of non-economic damages that may be awarded for a case.*
o Defined By State Law - each state has its own damages caps scheme .
o Federal Government – $250k cap on non-economic damages for medical malpractice claims.

- Single Recovery Principle: court must decide all damages -- past, present and future -- at one time and
settle the matter completely
 Limiting/Expanding Duty of Care
Nonfeasance and Landowners goes under Duty of the Negligence Breakdown
- Standard for duty shifts according to context, and/or

- Relationship between parties

- No longer using RPP unless you are in a jurisdiction like California, where they made the same duty
for all. Cali Court does away with distinction b/c of policy reason that just because your status changes
you are still worthy of protection [majority rule, P friendly approach]

Step 1 | Identify the Legal Character of the Individual on Landowner’s Property

Step 2 | Apply Relevant Duty of Care Owed & Substitute in Duty of RPP in Negligence
Step 3 | Analyze According to Duty
Step 4 | Conclude if Duty Met by Landowner /Occupier

Roles that Shift Duty of Care:

Identify the status of the (P) and what duty is owed to them

CARRIERS & HOST-DRIVERS

o an entity that transports passengers for pay (Ex. bus, airplane, train, etc.)
o Majority rule-- a carrier’s duty of care to its passengers is higher than the RPP standard
o Minority Rule – Ordinary Standard of Care
o RULE – The higher duty must be exercised to:
 Foresee danger, and
 Guard against danger
LANDOWNERS

o Invitees

 Business invitee - on land for benefit of owner

 Public invitee – on public property

RULE: A visitor is considered an invitee only in the areas to which the landowner’s invitation extends, and the visitor’s status
is unchanged by his or her method of entry onto the land.

To an invitee an occupier owes a duty to use reasonable care to prevent injury from unusual dangers of which he knows
or ought to know—on land for the benefit of the owner

o Licensees: limited permission to be on land (neither a trespasser or invitee)

 Includes social guest
o Trespassers: no legal right to be on land

To a licensee & trespasser his only duty is to warn of hidden dangers of which he is aware; to refrain from
willful/wonton danger, gross negligence—social guests even though they are “invited” over

RULE: You can start off as invitee (higher standard to protect him from known danger) once became trespasser (lesser
standard, protect against willful/wonton or reckless conduct likely to injure)
CHILD TRESPASSERS: lower standard aka “Attractive Nuisance Doctrine”
Landowner owner owes a duty of reasonable care to a trespassing child if a reasonable landowner would know or
foresee that
(1) There is a dangerous condition on his land
(2) Children are likely to trespass on his land, and
(3) Because of their youth they will face an unreasonable risk of serious injury (Ex. Unfenced Pool)

- Landowner does not automatically become liable for any injury a child trespasser may suffer

- Child need not be injured by the temptation that caused injury

- Only applies to those in “tender years”, school age or younger<7 , rarely teens

- Attractive nuisance must be condition on the land

- Fire and natural pool of water are “ common hazards” & landowner not liable

Premises Liability
P’s status:
 trespasser (discovered vs. undiscovered, adult vs. child)
 licensee vs. invitee
 P’s status can change
Scope of duty:
 Warning
 Making safe
 Inspection

Open and Obvious Danger Doctrine is an argument that can be made by a defendant
o Condition and risk are apparent to a reasonable person in the position of the visitor w/ intelligence &
judgment
o D may owe no duty to warn of open and obvious hazard.
o Obvious hazard is its own warning, in some circumstances. Liability would only follow if the failure to give a
warning was a proximate cause of the plaintiff’s harm. Still have to establish all the other elements of a
negligence claim.

Recreational Use Statutes to retain landowners’ special immunities to any nonpaying recreational user
o Enacted to limit liability and encourage landowners to make land available for recreation
o Lowers standard of care to prevent liability when D fails to use reasonable care and has injury
o Requires “intentionally caused injury or damage”
Landlords’ Duty to Tenants
- Traditional View—lessor (landlord) owes no duty of care to lessee during duration of the lease
- Modern View—lessor (landlord) owes duty to exercise RPP care to the tenant, and those on the premises by
virtue of tenants’ rights

Firefighters Rule
RULE (majority rule)–
1 - Public safety officials
2 - Restricted from collecting on damages that occur during scope of duties.
Fractured – discord about law across jurisdictions
Applies to:
- Firefighters – original subjects
- Police officers
- Public safety officers
- EMT’s
- Lifeguards
Does not apply to Private Persons, they use “Rescue Doctrine” (See Scope of Risk)

- Some jurisdictions adopt “the firefighter’s rule,” which precludes firefighters and other public employees from
recovering for a defendant’s negligence that caused the public employee’s injury.

TEXAS FIREFIGHTERS RULE

Texas recognizes the Firefighter's Rule, BUT a plaintiff firefighter may still recover where
(1) an arsonist or any other person acts with wanton, willful, or intentional behavior
(2) the defendant's negligence occurs after the fireman arrives on the premises
(3) a premises owner or occupier fails to warn of known dangerous conditions of which the fireman is unaware
or
(4) the fireman's injury occurs on land not owned or occupied by the negligent defendant.
 Nonfeasance
Nonfeasance and Landowners goes under Duty of the Negligence Breakdown
the intentional failure to act or perform a legal duty or obligation. The actor owed a duty of care toward the injured.

Misfeasance actively doing something that is tortious

No-Duty-to-Act Rule – one person owes another no duty to take active/affirmative steps for the other’s protection
(common law baseline)

• There must be a duty to act

- Ordinary rules of responsibility would normally indicate that Yania is responsible for his own decision to
jump unless he is known to be peculiarly susceptible to suggestion or otherwise incapacitated

- Bad Samaritan Statutes Vermont requires reasonable assistance to a person known to be in “grave physical
peril”. [The statue has symbolic value but is not usually enforced]. (Ex. Subway Sexual Assault ).

Exceptions:

• 1 – If person knows (or has reason to know) that his/her conduct, whether tortious or innocent – has caused
harm to another

• 2 – If person created a continuing risk of harm – even innocently – a duty arises to employ reasonable care to
prevent or minimize that risk coming to fruition

• 3 – If a statute creates a duty to act (Good Samaritan Statutes, etc.)

One who voluntarily undertakes to render services to another is liable for harm caused by his or her failure to perform such
services with reasonable care.

The driver had a duty because he caused the harm, and the passengers had a duty because they were in the car and
knew the driver was intoxicated therefore, they acquiesced to the conditions that further helped create conditions that
endangered the victim’s safety.

Duty to 3rd Persons

Actor who undertakes to provide services he knows (or should know) reduces the risk of harm to a 3 rd person, he has a
duty of reasonable care if:
a) The failure to exercise care increases the risk of harm beyond that which would have existed without the undertaking
b) The actor has undertaken to perform a duty owed by another to a 3 rd person
c) The person who services are provided, the 3 rd person or another person relies on the undertaking.

A municipality has a duty to continue conduct that has gone forward to a point where inaction would likely cause an injury to a
special class of persons for whom the municipality intends the conduct to benefit.
 MEDICAL MALPRACTCE
this is just negligence it only changes the duty analysis
Lay Definition – when a medical professional falls below his/her specific duty of care
Distinctions: Med Mal has special rules & Fluid, ever-changing – as new medical research and approaches emerge

RULE: In a medical malpractice case, a plaintiff must establish a generally accepted standard of care by which to measure the
defendant doctor’s conduct through expert testimony.

P must establish standard of care through expert testimony (lay jurors not aware of nuances of medical area).
Putting the BOP on P’s disadvantages them because the standard is based on what ‘most’ doctors would do.
There might not be enough doctors.

General Rule | Medical Standard of Care

1—Determined by the care customarily provided by other physicians in same class— “What the average qualified
physician would do in a particular”
- Objective Standard
- Often reflect reasonable care – buy may require less that RPP
- Similar to Custom
2—P has burden of procuring Expert Witness to argue that D didn’t meet Prong 1.
If a lay person can understand, an Expert Witness is not required but most of the time they are used anyway.

RULE: The standard of care in a medical malpractice action is defined by the degree of care, skill, and proficiency exercised by
reasonably careful, skillful, and prudent medical practitioners in the same class, acting under similar circumstances.

Specializations
Specialists—held to standard of physicians in their specialty, eg., cardiologist, orthopedic surgeons, etc.
Nurses-- held to standard of nurses in a similar practice
Dentist-- held to standard of dentist in a similar practice
Pharmacists—
- Majority Rule: no duty to warn of side effects, that the physician has prescribed an excessive dosage, or
that drug is contraindicated, even though the patient may seriously be injured if the prescription is filled
- Minority Rule: owes a duty to warn when serious contraindications are present, or the drugs prescribed
carry inherent risk

Good Sarmatian Statutes

Utah Emergency Care Statue
- Statue provides complete immunity.
- Covers medical providers “No person licensed under this chapter… who in good faith renders
emergency care at the scene of the emergency, shall be liable for any civil damages

Emergency Care & Policy Concerns –

Pos. docs are helping out in emergency medical situations
Neg. could be that doctors are practicing outside of their scope, possibly making the problem worse

Informed Consent
General RULE:
Physician owes patient to duty to disclose in a reasonable manner all significant medical information that the physician
possesses or reasonably should possess material for P to make an intelligent decision.
What should be disclosed: Nature of Treatment, Risks, Benefits, Alternatives, Opportunity for Questions
 - Negligence claim is based on informed consent NOT that the doctor did not meet the standard of care.
If the doc. had told them that was a risk, they would have never had the surgery. What is material is
governed by the reasonable physician standard; not as patient friendly as one might think.

RULE: The standard of disclosure is that of the reasonable medical practitioner and this will ordinarily require expert
testimony. Not a battery claim (medical battery) b/c insurance will not cover intentional torts, med mal is the way to go!

RULE: The doctrine of informed consent requires a physician to warn patients the risk and consequences of medical
procedure. Doctor said he was “good” success rate was 2/7 but not a risk related to medical procedure, so the physician
was not required to disclose

Med-Mal Policy Discussion

States have adopted one or more of the following:
1. Substantive Changes
- Res Ipsa not allowed, must prove actual negligence
- SOL strictly enforced – even when patient can’t discover negligence for many years
- Informed consent limited or discouraged
2. Remedial Changes
- Statues limit damages and may include absolute damage caps (on non-economic damages or total
recovery)
- Joint and several liability is limited
- Periodic payment plans for damage awards
- Limits on attorney fees
3. Procedural Changes
- Statutes strictly limits experts who can testify
- Certificate of Merit- an affidavit at the start of suit that the claim is reasonable (additional step)
- Secreting/Arbitration- Ps required to submit claims to pretrial arbitration or screening
 The Duty to Protect from Third Persons
Defendant’s Relationship with the Plaintiff
Remember | No Duty Rule
A person has no duty to protect another from criminal attack by a third person, absent a “special relationship”
“Special Relationships”
1. common carrier-passenger
2. innkeeper-guest
3. business-invitor-invitee
4. voluntary custodian-protectee relationship
obligation may be imposed on one to protect other from risk, if risk is reasonably foreseeable, or to render aid

Under the Balancing Test Approach, a court determines the duty owed by a D to a P to protect from third persons by balancing
the foreseeability and gravity of harm against the burden imposed on the defendant to protect against the harm.
Compared with the Hand Formula
Learned Hand in U.S. v. Carroll Towing Co, to determine whether a defendant breached a legal duty by failing to take sufficient
precautions, which would have generated greater benefits than implementation of the precautions would have cost.

Defendants Relationship w/ Dangerous Persons

Affirmative Duties of Landlords
Majority Rule: Landlords do not have a duty to protect residents unless there is a common area that are in charge of—
reasonable care for common areas
Ex. Kline – P attacked in hallway of apartment building D liable because it was a common area
GENERAL RULE – One owes no duty to control the conduct of a 3 rd person for benefit of the P
• Exception: Special Relationship
• If the defendant is in a special relationship to either the P or the third person, D is under a duty of care. D’s duty
of care covers victims that might be identified in advance and those who are “directly and foreseeably exposed
to risk of bodily harm” from D’s negligence.

Duties Of Colleges
Colleges generally no duty of care to protect students from themselves with respect to sex, drugs, alcohol, etc.
RULE: Supervisory school employees owe a duty to report sexual abuse of students carried out by other school personal,
even though the sexual abuse reporting statute creates no private right of action & its violation doesn’t show negligence
per se.
Duty to Control Children
- Parents not automatically vicariously liable for child torts
- Analysis- RPP Analysis (knowledge of child’s history/propensity for danger/harm)
Duty to Control Employees
- Responder Superior – employers are generally liable for torts of employees within the scope of
employment
- Additional duty for negligent hiring, supervision, retention of knowledgeable of danger to others
Dram Shop Statutes
- Civil liability on the dispenser of alcohol
Negligent Entrustment
- One is under a duty not to crate unreasonable risk to third persons by entrusting property that are
dangerous themselves or that are dangerous in the hands of the person to whom they are entrusted
- Most cases involve giving a dangerous thing to a person whom the entrusted knows should be apt to
use in a dangerous way – guns, cars, knives, etc.
- Regular negligence but change how you define duty of care
 Vicarious Liability
Definition – Imposition of responsibility upon one person for the failure of another, with whom the person has a special
relationship, to exercise such care as a reasonably prudent person would use under similar circumstances.
Special Relationships -
• 1 - Parent and Child
• 2 - Employer and Employee (Respondeat superior)
• 3 - Owner of Vehicle & Driver

Respondeat Superior
Elements:
(1) When an agent;
(2) Acting within his/her scope of employment;
(3) Commits a negligent act
(4) That hold his employer liable
 Employers’ vicarious lability does not exclude liability of employee
 P must sue employer directly

Policy Baseline & Aims

1. Prevention of future injuries
2. Assuring compensation of victims (with insolvent employees)
3. Equitable spreading of losses caused by an enterprise
4. Encouraging enterprises to build in cost of harms by employees in their budgets

RULE: Employer will be liable if the employee was acting in furtherance of the employer’s interest. Test whether D was
the servant doing his master’s work, very plaintiff friendly

RULE: Both employee and employer can be held liable for negligent acts caused by the employee if conduct was within
the scope of employment -- If they find it within the scope of employment, then strict liability

Coming and Going Rule

- Usually, employees are not in the scope of employment when going and coming to work.
- Exceptions:
o Where “on call”
o Employer provides car so the car is used for work purposes
o Employee is working during the commute
o Commute supplies a dual purpose

Edgewater Motels, Inc. v. Gatzk

Factors determining whether an employee’s negligent act occurs within the scope of employment include
(1) whether the employee’s conduct is in furtherance of the employer’s interests,
(2) whether the conduct is of the type of the employee is authorized to perform, and
(3) whether the conduct occurs substantially within authorized time and space restrictions.
o Temporary Deviation—smoking not a minor deviation, but part of his flexible and malleable work schedule

Frolic & Detour

Detour (trivial departure from the job): Vicariously Liable
Frolic (personal mission): Not Vicariously Liable

Poisoning Coworker
RULE: The employee’s conduct is within the scope of the employment if it is incidental to the employee’s duties, or if the
conduct is reasonably foreseeable in light of the employer’s business.
An employer is not strictly liable for all of an employee’s conduct during working hours.
Rather, if the employee substantially deviates from his or her employment, the employer may not be liable.
 Independent Contractors

Employee/ Servant- agent of an entity that is hired on a permanent basis

- Ongoing relationship
- Employer controls how work is done
Independent Contractor - an agent that is hired by an entity for a specific task or service.
- Contractor controls how work is done
- Contractor has own business, own employees
- Typically expires upon completion of task/service

RULE: company is not liable for the negligent acts of an independent contractor does not apply if the company exerts
control over the equipment to be used, the manner or method of performing the work, or the direction of employees of the
independent contractor. Generally, when a company hires an independent contractor who conducts a separate business,
the hiring company is not liable for the negligent acts of the contractor

Independent Contractor & Vicarious Liability

1—whereby a person engages a contractor.
2—who operates an intendent/separate business by means of own employees
3— That person is not liable for negligent acts (of independent contractor)

Exceptions to the Standard Rule [how ^^ is often tested]

(1) Retains control
(2) Hire an incompetent contractor (rule within VL)
(3) Activity is inherently dangerous

Multiple Defendants
Joint and Several Liability
Acts of two or more individuals combine to produce one result
a. Tortfeasor acting in concert w/ another
Ex. 2 Ds beating P with fists
b. Tortfeasors acting concurrently and independently
Ex. 2 Ds shoot separate rifles and kill P cow – each liable for entire damage
 Common Law Strict Liability
Def: The imposition of liability in a party without finding/proof if fault
Proof: Claimant need only prove that the tort took place and that the D was responsible. Doesn’t have to prove
causation/intent.

Dangerous Activity: the law generally imputes SL to situations it considerers to be inherently

dangerous or extremely socially unacceptable conduct

Modern Doctrine
Vast majority of torts require that you prove causation (fault)
Exception, not the Rule

Injuries Caused by Animals

You don’t have to show any fault in the owners
1. Trespassing Animals
RULE (Restatement 3rd)
- An owner of an animals
- That intrudes on another’s land (trespass)
- Subject to strict liability for physical harm
- Caused by trespass
 Typically applies to livestock
 Exceptions:
o Domesticated animals (cats, dogs, pigs, etc.)
o Cattle strayed from highway (when driven)

2. Abnormally Dangerous Animals

RULE (Restatement 3rd)
- Strict (but limited) liability.
- For owner/possessor of an animal w/ dangerous tendencies
- Abnormal for the animal’s category
- Knowledge—strict liability imposed if owner/possessor
• Danger Threshold – modest level of danger
No Strict Lability in Texas for Dog Bites; Dallas County you could be held criminally liable

3. Wild Animals
RULE (Restatement 3rd)
- Owner/possessor
- Strictly liable for injuries to another
- Connected w/ the wild nature/ behavior of (wild) animal
Ex. Lions, Tigers, Bears

Impoundments, Nuisances and Beyond

Rylands v. Fletcher, reservoir broke and flooded the coal mines
A person who disrupts the natural state of real property by lawfully bringing something onto his land that, if it escapes, is
capable of doing harm, is strictly liable for any harm occurring as a natural consequence of the escape.
- If a person keeps something on his land that could damage his neighbor if it escaped, and that thing actually
escapes and damages the neighbor, then the person should be responsible for the damage, regardless of
whether he exercised care or took precautions to prevent the escape.

Escaping Impoundments
Rylands Today—facts would give rise to conventional negligence, not strict liability
 For Strict Liability (1) Noxious substance (2) Impounded liquids that percolate through the soil

Abnormally Dangerous Activities

6 Part Strict Liability Test for “Abnormally Dangerous Activities”

1. the existence of a high degree of risk of some harm to the person, land, or chattels of others;
2. the likelihood that the harm that results from it will be great;
3. an inability to eliminate the risk by the exercise of reasonable care;
4. the extent to which the activity is not a matter of common usage;
5. the inappropriateness of the activity to the place where it is carried out; and
6. the extent to which its value to the community is outweighed by its dangerous attributes.

Examples
SL: Blasting, dynamic, construction activity comprises the core of the traditional rule
Expanded to include:
• Fireworks
• Poisons
• Hazardous Wastes (toxins)
• Lateral/Subjacent support (of neighbor and soil)
Not SL: Airlines, guns

Restatement 3rd
2 Part Strict Liability Test:
• 1 – The Activity Must create a “foreseeably and highly significant risk or physical harm when reasonable
care is exercised by all actors.
• 2 – The D’s activity is not one of common usage

Contributary Negligence and Assumption of Risk

Implied assumption of risk IS NOT A defense to strict liability
 Nuisances Today
Nuisances are not a stand-alone tort – it’s an injury ‘in tort’ that P has sustained
Can be based in Intentional Behavior, Negligent Behavior, or Abnormally Dangerous Behavior

Nuisance Defined
• D’s actions (on own land);
• Substantially interfere with P’s use and enjoyment of their own land
• Typically an intangible invasion (water, smoke, toxins)
• Which is unreasonable

Key Points
• Most modern nuisance cases are rarely a matter of strict liability
• Most cases today assessed through negligence analysis
• Substantial – invasion must rise to the level of substantial
• Unreasonable – P not expected to put up with the invasion

Public Nuisance
A public nuisance is an interference with a right common to the general public.
 D releases noxious odors or harmful chemicals into the air
 D breeds diseased animals
 D maintains a whorehouse*
 D maintains a gambling parlor*
 D cuts off the use of a public road
 D maintains an unlicensed business
A private citizen may recover for her own damages stemming from a public nuisance, but only if she has sustained
‘particular harm’; that is, damage that is different in kind, not just degree, from that suffered by the public generally.

Private Nuisance
A private nuisance is an unreasonable and substantial interference with P’s use and enjoyment of his land.
Elements:
1. P has an interest in the land that has been substantially and unreasonably interfered with; and
2. D behaved in a negligent, abnormally dangerous, or intentional manner.

P might have a case for private nuisance

o P has an interest in the land that has been substantially and unreasonably interfered with; and
o D behaved in a negligent, abnormally dangerous, or intentional manner

D (Utility) v. P (Harm)

Trespass 2 Land v. Private Nuisance

 Trespass to land: interference with P’s right to exclusive possession of his property (nominal damages allowed)
 Private Nuisance: interference with P’s right to use and enjoy his property (substantial interference required)

Damages in Private Nuisance

 Compensatory damages
 Injunction
Defenses to Private Nuisance
 Contributory negligence (if D’s underlying behavior is negligent).
 Assumption of the risk
o P ignores sign saying ‘stay out’
o P comes to the nuisance
 Nuisance per se (nuisances at law)
 A nuisance that cannot be so conducted or maintained to be lawfully carried or permitted to exist
 Example: “house of prostitution”
 “Obstruction that encroaches on the right of way of a public highway”
 Question of Law to be decided by judge

Nuisances Per Accidens

 Otherwise, lawful use of land that may become nuisance due to circumstances surrounding the use
 Nuisance in fact
 Question of fact to be decided by the jury