TERM SHEET: TORTS

INTENTIONAL TORTS (7)

 The extreme sensitivity of P should be ignored when deciding if there is
a valid cause of action
OVERVIEW  No Incapacity defenses (Children, Intoxication, mentally disabled)
 Transferred Intent: Intent will transfer from intended tort to committed

An intentional act by D that causes harmful or offensive with P’s person

1. Harmful or Offensive Contact

- Offensive = Unpermitted by a person of ordinary sensitivity
BATTERY
2. Contact has to be with P’s Person
- Person includes anything holding, touching or connected to
- Ex. Grabbing briefcase you are holding and slapping horse sitting on =
battery

*A battery does not need to occur instantaneously

*D does not have to use own body (D’s animal or D poisons food)

An intentional act by D that causes a reasonable apprehension of an

imminent battery in P

1. D must Place P in reasonable apprehension

- Apprehension = knowledge
- P has to see it coming that D is about to commit battery, BUT do not
have to be afraid
ASSAULT - Empty Threat: Threatens battery but cannot complete…still assault if
reasonable belief (Unloaded gun)

2. Apprehension must be of an immediate battery

- Words alone not sufficient to create immediacy
- There must be conduct such as a Menacing Gesture (gun or drawing
fist)
- BUT conditional words negate immediacy (“If you weren’t my bff I’d
slap you silly”)
- BUT future threats negate immediacy (“Just wait until tomorrow and
I’ll slap you silly"
 An intentional act or omission by D that causes P to be confined or restrained
to a bounded area

1. D must commit an act of physical restraint

- Threats are sufficient (if you leave I’ll call the cops”)
FALSE - A failure to act/Omission can be an act of restraint if pre-existing duty
IMPRISONMENT (ex. Failure by airline to get P a wheelchair)
- P must be Aware OR Harmed by restraint

2. P must be confined in a bounded area

- An area is not bounded if there is a reasonable means of escape that
the P can reasonably discover
- Dangerous, disgusting, humiliating or hidden is not reasonable

Intentional Extreme and Outrageous conduct by D that causes P to suffer Unlike all
severe emotional distress other
Intentional
INTENTIONAL 1. D engaged in Outrageous Conduct torts
INFLICTION - Outrageous = conduct that exceeds all bounds of decency in a
OF civilized society Do not need
EMOTIONAL - Plus Factor: conduct in question is continuous or repetitive in nature to show
DISTRESS - Plus Factor: Defendant is a common carrier or innkeeper intent
(IIED) - Plus Factor: Plaintiff is a member of a fragile class of persons (reckless OK)
- children, elderly, pregnant
- Plus Factor: Deliberately exploiting a known sensitivity

2. P suffered severe emotional distress

- Subjected inquiry; physical symptoms/medical evidence not required
- Be aware of negated characterization “Mildly annoyed, Slightly Mad”

*Mere Insults are never outrageous

*Physical Injury not required

An intentional act by D that causes a physical invasion of P’s real property

TRESPASS 1. D must commit an act of physical invasion

TO - D enters the land, but does not need to know crossed boundary
LAND - D throws something onto the property (must be tangible object)
- Loud noises or shining light is not a trespass
2. Invasion must be of P’s land
- Includes air above and soil below to a reasonable distance
 An intentional interference by D of P’s personal property

TRESPASS TO  Slight/Modest Interference = trespass to chattels

CHATTEL &  Significant Interference = Conversion
CONVERSION
 Remedy for Trespass to Chattel = Cost of Repair
 Remedy for Conversion = Fair Market Value

*Mistake is not an excuse (smashes laptop of friend thinking it is yours)

AFFIRMATIVE DEFENSES to Intentional Torts

P’s consent to D’s tortious conduct is a defense to all 7 intentional torts

P must have legal capacity to give consent

- Drunk is insufficient
- Kids consent to age-appropriate tasks
- 12 y/o face surgery ≠ consent
- Two 12 y/o boys may consent to wresting

Express Consent: explicit words granting D permission (oral or written)

 Exception is if consent was obtained through fraud or duress then
consent is void (Fake doctor or failure to disclose STD)

CONSENT
Implied Consent:
 Implied consent from custom and usage: If P goes to a place or engages
in an activity where certain invasions are routine, it is assumed that P is
amenable to those invasions (Sports or crowded subway)
 Implied consent based on body language: Based on D’s reasonable
interpretation of P’s objective conduct (Kiss after a date)

D must not exceed scope of consent given

 Consent is not all or nothing
 Ex. Stomping on hand in basketball game is battery and exceeds scope
 Ex. Express consent to operate on knee and doctor operate on hand
(that is a battery and exceeds scope)

D responding to a threat coming from the P

 1. Is protective privilege available to D?
PROTECTIVE o Timing: Protective privilege only available if threat is in progress
PRIVILEGES: or imminent (heat of the moment or in real time)
1)SELF-DEFENSE
o Accuracy: D must have a reasonable belief that the threat is
2)DEFENSE OF
OTHERS genuine
3)DEFENSE OF 2. Scope of privilege
PROPERTY o Must limit response to force necessary under the circumstances
 Can fight fire with fire
 Force must be proportional to threat
 Cannot use deadly force to protect property

D’s interference with P’s property is a defense ONLY to the 3 Property Torts

Public Necessity: D commits a tort in an emergency to protect the community

as a whole or a significant group of people.
o Fire that is spreading throughout a city
NECESSITY
Private Necessity: D commits a tort in an emergency to protect own
interest/possession
o D must pay for any actual harm done to P’s property
o If you go on someone property during emergency to take refuge,
must be allowed to remain. P must tolerate D’s presence until
emergency is over

NEGLIGENCE
Elements of the Prima Facie Case for Negligence:

1. The defendant owes a duty of care to conform to a specific standard of

conduct
OVERVIEW 2. The defendant breached that duty
3. The breach of duty was the actual and proximate cause of the plaintiff’s
injury
4. The plaintiff suffered damages to person or property

1. General Standard of Care: Reasonably Prudent Person

  Objective standard
 Mentally ill and disabled still held to reasonably prudent person
standard
 Exceptions to reasonably prudent person
o Reasonably prudent person standard can click higher for an
added degree of skill or knowledge (for example if you have lived
in a neighborhood for 15 years and know of a dangerous
intersection)
o Where relevant look to physical characteristics (blind person)

2. Child Standard of Care: Children must conform to standard of care of a

child of like age, education, intelligence, and experience under similar
circumstances
 Subjective standard of care
 Under 5 y/o, zero duty of care
DUTY  Exception: If child is engaged in an adult activity, the adult reasonably
prudent person standard applies
o Operating a motorized vehicle

3. Professional Standard of Care (Malpractice): Professionals must

exercise the knowledge and skill of an AVERAGE member of the
profession.
 What is customarily done, usually proven by an expert witness

4. Premises Liability: When P enters land and encounters a dangerous

condition
 Unknown Trespasser: Comes on the land without permission and
possessor does not know they are there. Owed Zero duty of care.
 Known Trespasser/Anticipated Trespassers: Trespassers you would
expect due to their frequency
Takeaway:
- Duty of care: owed when meets 4 part test: Duty is only
(1) condition in question must be artificial (no duty to snow/ice) owed where
(2) highly dangerous condition (capable of inflicting severe harm) known, man-
(3) Concealed condition (no duty to open/obvious condition) made, death
(4) Possessor has prior knowledge that the conditions exists traps
*Artificial ex.: Bridge
 Licensees: Those who come onto the land with express or implied
Takeaway:
permission but for their own purpose (most common is social guest) Must protect
 - Duty of care: owed when meets 2 part test: licensees from
(1) Concealed from licensee AND; all KNOWN
(2) Known by possessor traps on land.
 Invitees: Those entering as members of the public or for a purpose
connected to the business of the landowner (Business Customer,
Museum, Airport)
Takeaway:
- Duty of care: owed when meets 2 part test:
Must protect
(1) Concealed from invitee AND; invitee from all
(2) either known by possessor or could be discovered through a reasonably
reasonable inspection knowable traps
- Reasonable Inspection: Inspection conducted by RPP
- FirefIghters/Police- They may not recover for any injury that is an
inherent risk of the job
- Trespassing Kids- Reasonably prudent care is owed to prevent
injuries from artificial conditions on the land
o Attractive Nuisance Doctrine: “Kid Magnet”-something on
DUTY your land that draws children in and as a reasonable person
CONTINUED you should make your land safe (jungle gym, swing set)
- Rule: Where duty is owed to anyone other than trespassing child:
(1) Repair or make safe the hazardous condition OR
(2) Give an effective warning *Wet Floor

5. Statutory Standard of Care: A criminal statute may serve to establish a

specific standard of care in place of the general standard of ordinary
care if: Negligence
(1) The P is within the class that the statute was intended to protect Per se
(2) The statute was designed to prevent the type of harm suffered

- EXCEPTION- even when the 2 part test is met Motorist has

(1) If statutory compliance would be more dangerous than heart attack,
violation, don’t use the statutory standard of care runs red light,
(2) If statutory compliance is impossible, don’t use statutory SoC hits pedestrian

6. Duties to Act Affirmatively: There are no duties to act affirmatively

 Exceptions: If you opt to
(1) Pre-existing relationship between P and D (triggers duty) rescue and you
- A legal relationship: Landowner-invitee; employer-employee are negligent,
(2) D caused the peril you are LIABLE

7. Negligent Infliction of Emotional Distress: The P must be within the

“zone of danger” and ordinarily must suffer physical symptoms from
 the distress
Exception: The D breaches a duty to a bystander not in the zone of
danger who (i) is closely related to the injured person, (ii) was present
at the scene of the injury, and (iii) personally observed or perceived the
event
Exception: A relationship exists between the D and the P under which
the D’s negligence has great potential to directly cause emotional
distress (e.g., hospital erroneously reports death of plaintiff’s family
member). *Must be foreseeable

 Standard of Proof: P must show Fact and Reason in order to make a breach
o Fact: Must be specific (affirmative or negative)  Failure to check tire pressure Whether the D
or drank 8 martini’s before driving breached the
o Reason: Unreasonable b/c…  Drank 8 martinis and P will claim unreasonable applicable duty
because it impairs driving. of care is a
BREACH
 Res Ipsa Loquitur: The fact that an injury occurred may create an inference that D question for
OF the trier of fact
breached their duty (“More likely than not”)
DUTY
o Element 1: The type of accident causing the injury is a type that would not
have occurred absent negligence
o Element 2: The negligence is attributable to the D (usually because the D is in
exclusive control of the instrumentality causing the injury)
o Element 3: The injury was not attributable to the P’s own conduct

 ACTUAL Causation: Where P establishes a linkage between the breach and injury
suffered.
o But For Test: Was the breach essential in producing the injury?
 An act is the actual cause of an injury when it would not have occurred
but for the act
o Joint Causes/Merged Causes: Where Multiple Breaches occur
CAUSATION  Substantial Factor Test: when two acts bring about an injury and either
one alone would have sufficed, either of the acts is an actual cause of the
injury if it was a substantial factor in bringing it about
o Alternative Causation: When two acts were negligent but it is not clear which
was the actual cause of the injury, the burden shifts to each of the negligent
actors to show that his negligent act was not the actual cause
 Example: 2 Bullets shot from 2 shotguns. 1 Bullet hits P’s eye. Burden
shifts on D’s to prove who it was.
 Rule: Where unascertainable, Burden of Proof shifts to D.

For Proximate
 PROXIMATE Causation: P must show the jury that liability would be FAIR.
Cause, think
 o Rule: Fairness is dependent on FORESEEABILITY. about
o Indirect causes cases: An INTERVENING FORCE occurs after the D’s negligent FAIRNESS
act and combines with it to cause the injury.
o 4 Scenarios of Foreseeability and a Finding of Proximate Cause:
 (1) Intervening Medical Malpractice: Foreseeable that if D runs red light These 4 always
and hits P with a car, Doctor may commit malpractice. show up and
 (2) Intervening Negligent Rescue: Foreseeable to D that someone could courts
injure P while acting as a Good Samaritan. determine all
 (3) Intervening Protection or Reaction Forces: Foreseeable that running a are foreseeable
and fair
red light, hitting P and causing a reaction (stampede) among pedestrians
could lead to injuries to P.
 (4) Subsequent Disease or Accident: Foreseeable that leaving someone in
a weakened condition could result in other injury. (D runs red light hits P,
P put in cast and crutches and falls using crutches)

The P must show actual harm or injury to complete the prima facie case
DAMAGES  Eggshell Skull Doctrine: Once the other elements have been established, P will Applies to
recover for all harm, even if surprisingly great in scope. every tort

Affirmative Defenses to Negligence

 Standard of Proof: D must show P failed to exercise proper care for his own safety
o Proper Care = Reasonable Prudence; Also includes self-protective care (ex.
jaywalking)
o Jury then weighs and compares the negligence of the 2 parties and assigns
them a percentage of fault
COMPARATIVE  PURE comparative negligence: A negligent P can recover damages reduced by the
NEGLIGENCE percentage of her fault if she was primarily at fault
 MODIFIED/PARTIAL comparative negligence: A negligent P can recover
reduced damages as long as her fault is not above 50% fault.

Strict Liability

STRICT  DOMESTICATED ANIMALS- House Pets and farm animals Must establish
LIABILTY o Rule = No strict liability if D is injured by these animals (your dog) negligence
FOR o Exception: If your animal as vicious propensities and they are known to you,
you will be strictly liable First bite puts
ANIMALS
o Vicious propensities = must be unique to this one animal (all donkeys kick) you on notice
o Scope: Only applies to people on public street or social guests in your home.
Does not apply to trespassers on your land
  Wild Animals- Strict Liability is imposed
o Safety precautions are irrelevant. (buys best tiger cage available with 20 locks)

An activity that creates a foreseeable risk of harm even when reasonable care is
STRICT exercised by all actors
LIABILTY  2-Part Test: Safety
o (1) Danger: Foreseeable Risk of Serious/Significant Harm, even where precautions
FOR
reasonable care is exercised. are irrelevant
ABNORMALLY
o (2) Abnormal: Activity is uncommon in the community where it is being
DANGEROUS
conducted.
ACTIVITIES  Common Types:
o Explosives
o Highly Toxic Chemicals or Biological Material
o Radiation or Nuclear Energy

 Elements:
o (1) D must be a Merchant
 Non-Merchants: Casual Sellers and Service Providers No privity
 Merchants: Routinely deals in goods of this type- Commercial Lessor; required
Parties in Distribution Chain (wholesaler; supplier; manufacturer)
o (2) Product must be Defective (3 types)
 Manufacturing Defect: Varies from the other products in the
manufacturing process and is dangerous beyond the expectation of the
STRICT ordinary consumer “Departs from Intended Design”
LIABILTY  Design Defect: Product’s costs outweigh the benefit of the design, such
FOR that a reasonable merchant would NOT have put it on the market.
PRODUCTS  Costs: Slow, expensive, risk (things that hurt you)
 Benefits: easier to use, less production cost
 Reasonable Alternative Design Test: If met, shows costs outweighed
the benefits
o Safer
o Economically Feasible
o Practical
 Information Defect: If a product has residual risks that cannot be
designed away, and if that risk is NOT obvious or apparent to users, then
the product is defective if it lacks adequate warnings/instructions. Page 6 warning
 Placement of Warning: Big Red stick is adequate in booklet may
 Comprehensibility: Bilingual or Icons not be
 Risk Mitigation Info: “wear mask when using” for pesticides adequate
o (3) Products has not been altered since leaving D’s hands:
BoP on D
 Presumption: Presumed no alteration as it moves through ordinary
channels of distribution (no presumption to used items) (yard sale)
o (4) P must show Foreseeable Use of the product at the time of injury
STRICT LIABILITY DEFENSES
  D will be strictly liable, but P will not recover full cost
COMPARATIVE  Ex. Toaster is sparking, but you are set on making toast
RESPONSIBILITY  Ex. Trespass onto to land and put hand in tiger cage

NUISANCE

 Nuisance: The unreasonable Interference with P’s ability to enjoy/use his Entitled to use
property. land in a lawful
NUISANCE o The amount of interference is unreasonable. (Intolerable) way
o Examples: Loud noise, bright lights, pollution
Look for choice
 Standard: P will win if the balance of interests’ tip in P’s favor. that embodies
**Minor inconveniences are not nuisances. the legal rule

GENERAL CONSIDERATIONS FOR ALL TORTS

The defendant may be vicariously liable for the tort of another based on the
relationship between the defendant and the tortfeasor
 4 relationships: **First two
o (1) Employer-Employee more
 employer is liable for torts of an employee that occurs within the scope important than
of the employment relationship last two
 Intentional torts are typically outside the scope of employment relationships
 Jobs involving Force: Misuse of Force is within the scope of
VICARIOUS employment (bouncer beats someone up)
LIABILITY  Jobs Leading to Tension: Repo man loses cool and punches someone
 Serving Boss’s Purpose: Within the scope when an overzealous
security guard falsely imprisons someone
o (2) Principal-Independent Contractor: General Rule there is NO LIABILITY
 Exception: Hiring an independent contractor to work on your business
premise…then vicariously liable if the hurt a customer
o (3) Automobile owner-driver: General Rule there is NO LIABILITY
 Exception: When owner gives car to run an errand (that relationship is
now principial-agent relationship)
o (4) Parent-Child: NO Vicarious Liability at all (have to sue the kid)

 Right of Contribution: P sues A, B, and C and obtains a judgment. A pays it all  A

MULTIPLE has a right of contribution against B and C (jury assigns percentages)
DEFENDANTS  Indemnification: Full reimbursement of a defendant
o Ex.: Where D is held vicariously liable
 o Ex. : Retailer is indemnified by manufacturer in strict liability case (Home
Depot 100k judgment against them now go after manufacturer)

 Definition: Where a married person is injured, their spouse will have a separate
LOSS and independent claim against D.
OF  Derivative: Any Defense raised against consortium party can be raised against the
CONSORTIUM non-consortium party.
 POLICY:
o Loss of household services
o Loss of Society (companionship)
o Loss of Sex
DEFAMATION
Defamatory language concerning the P published to a third party that causes
damages to the P’s reputation
 Elements:
o (1) P must show D made a defamatory statement that specifically identifies P
 Defamatory Statement: Statement that tends to adversely affect your
reputation Mere name-
 Specifically Identify P: Need not name P directly. P must be alive when calling is not
statement is made defamatory
o (2) Statements must be Published
 Published: Statement must be shared with others (At minimum: Shared
w/ one other person)
DEFAMATION
 More people shared with = More Damages
 Publish need not be intentional; negligent publication is sufficient
 Anyone who repeats the publication is liable (Republisher)
o (3) Damages: will be presumed if libel or slander per se (4 categories)
 Libel: Any defamation that is embodied in permanent form
 Rule: Presumption of libel for damages  More evidence = More $$
 Slander: Defamatory statement spoken in oral nature
Libel = written
 Slander Per Se: Presumed Damage (like libel)
o (a) Statement relates to P’s business/profession;
Slander
o (b) Statement that P committed a serious =
crime(Violence/Dishonest) spoken
o (c) Statement that imputes unchastity to a woman (unmarried
woman is sexually active) A,B,C, D =
o (d) Statement that P suffers from a loathsome disease Slander Per Se
 Loathsome Disease: (1) Leprosy and (2) Veneral Diseases
 Slander Not Per Se: Must PROVE damages (damages or not
presumed)
 Rule: P must offer evidence of economic harm (ex. Got fired or lost
revenue)
Affirmative Defenses to Defamation
 CONSENT  Consent can be express or implied

TRUTH  D can show that the statement is factually accurate to defeat the claim Burden of
 “you really did commit the robbery” Proof on
Defendant

 (1) Absolute Privilege:

o Communication Between Spouses: You tell your wife your boss is stealing from
the company
o Communication of officers between the 3 branches of gov’t (In the conduct of
their official work)
 Judicial Branch: Privilege extends to judge, lawyers, witnesses (anything
put in a brief, pleading, etc. cannot be subject of defamation lawsuit)
 (2) Qualified Privilege: Arises only where there is a public interest in encouraging
candor
o Standard: Case-by-Case
PRIVILEGE o Rule: Person invoking the privilege must have a reasonable and good faith
basis for making the statement.  “honest mistake”
o Rule: The subject must be about the matter on hand
 Example: Student asks for Recommendation. You say he has an STD (not
about the matter on hand)
o Matters of Public Concern: Newsworthy or affects the public at large
 Test: We add 2 additional elements to Defamation Additional rules
 (4) P must prove falsity of the statement if P is a public
 (5) P must prove some degree of fault. official or figure
o Falsity: Statement was made in a way other than good faith OR if the
o Degree of Fault: defamation
involves a
 Private Figure: Speaker made the statement negligently
matter of
 Public Figure: Must prove ACTUAL MALICE, that the statement
public concern
was made with knowledge of its falsity or reckless disregard of
its truth or falsity.
Invasion of Privacy (4)

 Definition: unauthorized use of P’s picture or name for a commercial purpose

APPROPRIATIO  Exception: Not a tort to use the image if it is newsworthy  Front page of
N newspaper (different than front of cereal box)
 Applies to everyone in the world (Can’t take your pic and put on billboard for acne)

 Definition: Invasion of P’s seclusion or private affairs in a way that would be Does not apply
INTRUSION highly offensive to a reasonable person. (Eavesdropping, secret cameras, peeping to someone
Tom, wire taps) over hearing
you at a bar
 D must be in a place where there is a reasonable expectation of privacy
 *hotel or car

 Definition: Wide spread dissemination of a material falsehood about P that would

be highly offensive to the average person. (D running all over town telling a lie
FALSE LIGHT about P that he is embezzling money)
 This conduct can apply to both defamation and false light invasion of privacy
o Defamatory: Recover for Economic Damage
o False Light: Recover for Emotionally/Dignitary Damages (ashamed)
*Many false light claims arise from accident rather than deliberation
(article about cab drivers stealing and using picture of P standing by their cab)

 Definition: The public disclosure of confidential information about P that would be

DISCLOSURE offensive to a reasonable person.
o Ex.: Doctor’s receptionist sends your medical records to everyone at your firm.
 Exception: NEWSWORTHY EXCEPTION (investigative journalism)
 “This celebrity is addicted to drugs”
 Must be truly confidential
Affirmative Defenses to Privacy

CONSENT  Consent defense available to all (appropriation, intrusion, false light, disclosure)

PRIVILEGE  Absolute and Qualified Privilege are available to only (1) False Light and (2)
Disclosure Claims
 Ex. U.S. congressman gives speech on the floor and says a constituent is Jewish
when they are catholic (false light). They have an absolute privilege because they
are a member of congress.