Professional Documents
Culture Documents
Intentional Torts
MBE Overview examiners love it. 1/3 of the torts questions.
General Rules
1. The extreme sensitivity of a plaintiff is ignored in determining if the
plaintiff has a claim. We always assume we are dealing with a person
of ordinary or reasonable sensitivity.
2. In the world of intentional torts, there are no incapacity defenses. In
many branches of a law, there are a lot of people who lack legal
capacity (e.g., a child). However, if a child punches you in the face,
the child is liable for an intentional tort (battery). The same is true for
a mental ill person.
a. If you see an answer on the MBE that refers to lacking legal
capacity for an intentional tort, never pick it.
3. All intentional torts require intent.
Individually Named Intentional Torts Seven (7)
1. Battery
a. Intent
i. Deliberately and on purpose.
ii. A defendant is acting intentionally if he desires to bring
about the forbidden result; or knows that the result is
certain to occur.
b. To commit a harmful or offensive contact
i. Harmful
1. Too easy to test it's a contact that puts you in the
hospital, that makes you bleed, or kills you.
ii. Offesnive
1. More likely.
2. Substitute "unpermitted" for the concept of
offensiveness. Pertains to a person of reasonable
and ordinary sensitivity.
a. E.g., unwanted sexual touching, even if it's not
in an intimate part of the body, is always
offensive.
c. With the plaintiff's person.
i. Anything the person is holding or connected to is
considered a part of the person.
1. E.g., someone jumps on your car while you're driving
it. Battery.
2. E.g., a girl is riding a horse and a stranger slaps the
butt of the horse. Battery.
1
5. Trespass to Land
a. Intent
b. Act of physical invasion
i. Entering someone else's property
1. Defendant doesn't have to be aware that he has
crossed a property line. The only intent required is
the intent to get to that location; mistake about
entitlement to be there is not a defense.
ii. Projecting an object onto the land causing an object to go
on the property.
1. The object must be tangible
2. Odors, sound waves, and light do not count
c. Interference with plaintiff's exclusive possession of real estate
i. The proper plaintiff is the possessor of the real estate
e.g., the renter of the real estate
ii. Exclusive possession includes the air above and the soil
below the land, but only out to a reasonable distance
6. Trespass to Chattels and Conversion
a. Trespass to Chattels small harm
i. Intent
ii. Interference with plaintiff's personal property
1. Slight interference
iii. Remedy is cost of repair
b. Conversion big harm
i. Intent
ii. Interference with plaintiff's personal property
1. Significant interference
iii. Remedy is full market value of the item. It's a forced sale
of the chattel.
c. Personal Property is anything that's not real property, including
electronic data
d. These are private, civil, money damage causes of action seeking
monetary damages
4
Privacy Law
Privacy Torts
1. Appropriation
a. Defendant uses the plaintiff's name or picture for commercial
purposes and without permission
i. EXAM CAUTIONS
1. Newsworthiness exception if you put a football
player's picture on the Wheaties box, that's a tort.
But, if you put his picture in the sports section of a
newspaper, you can do that without permission
2. Doesn't have to be a celebrity it can be a private
person
2. Intrusion
a. Invasion of the plaintiff's seclusion in a way that would be highly
offensive to the average person
i. Types:
1. Involves wire tapping
2. Covert video surveillance
Tort of Negligence
Negligence
1. Duty
a. Obligation to take risk reducing precautions, and if you fail to
take those risk reducing precautions and your failure results in
injury, you've gotta pay for that.
b. Who should I be thinking about? Foreseeable Victims
i. You owe a duty to take precautions for the benefit of
"foreseeable victims"
ii. No duty owed to unforeseeable victims
1. Unforeseeable victims always lose negligence cases
2. Unforeseeable victims are usually very far away
iii. Exception to unforeseeable victims rule
1. You owe a duty to rescuers; they're given a free pass
with respect to the Palsgraf problem.
c. How much care? Reasonable Prudence
i. As much care as a reasonably prudent person acting under
similar circumstances
10
b.
c.
d.
e.
Accountants
Lawyers
Architects
Any group of people who in the practice of their
trade or occupation requires a special skill or
license, and may be self-regulating.
2. Two ways of phrasing standards of care:
a. (1) Restatement A professional is obligated to
exercise the skill and knowledge normally
possessed by members of the same profession
in good standing.
b. (2) Prof's A professional must behave with the
same care as average members of the same
profession. The custom of others is the
standard of care.
c. E.g., the defendant doctor is compared to other
doctors in the real world. They have to do it the
way the other doctors do it. The custom of the
practice is dispositive.
d. You may need an expert witness, since a jury
will not necessarily be aware of how most
doctors behave.
e. The standard of care is not to behave as a
reasonable doctor.
i. This is incorrect because reasonableness
implicates a cost/benefit analysis. We
don't do that when we adjudicate
doctors; we only compare them to their
colleagues.
iii. Premises Liability
1. Plaintiff enters real estate (private propertyland or
buildings).
While on the property, the plaintiff
encounters a hazardous condition and gets hurt. Did
the person who possessed the property owe a prior
duty to protect the entering plaintiff from the
hazardous object?
2. The answer depends on the kind of entrant:
a. Unknown/Undiscovered Trespasser
i. (1) Plaintiff comes on the land without
permission and (2) defendant has no idea
the plaintiff is there.
1. Zero duty of care. No duty to
protect unknown trespassers.
ii. E.g., burglar comes into your house while
you're away on vacation and the burglar
gets injured in the house.
12
iii. Undiscovered
trespassers
are
unforeseeable victims
b. Known/Anticipated Trespassers
i. Possessor either knows or should know
that they're on the land.
ii. EXAM TIP: Pattern of trespassing in the
past triggers an anticipated trespasser.
E.g., hikers frequently
iii. Standard of care: Possessor must protect
these people only from that small subset
of hazards that meet four conditions
(must be artificial hazardous condition):
1. No duty to trespassers for naturally
occurring hazards;
2. The condition must be highly
dangerousno
duty
if
mildly
dangerous;
3. The condition has to be concealed
(hidden) from the entrant (no duty
if open or obvious); AND
4. Defendant/possessor has to have
knowledge of the condition in
advance
iv. The possessor must only protect from
known, hidden, manmade death-traps on
the land.
c. Licensees
i. People
who
enter
property
with
permission, but who do not confer
economic benefit on the possessor (e.g.,
social guest)
ii. Duty with respect to natural/artificial
conditions only if:
1. Condition is concealed (hidden)
from licensee
2. Condition
is
known
by
the
possessor/defendant
3. "Land possessor must protect from
all known traps on the land"
d. Invitees
i. People who enter with permission but do
so in a way that confers economic benefit
on the possessor. In most jurisdictions, it
is an invitee scenario if there is
permission for everyone to enter (e.g.,
customer of a business).
13
15
Careless
performance by defendant will cause
significant distress. Preexisting business
relationship is required.
1. E.g.,
false
positive
medical
diagnosis by a medical laboratory.
Lab performs test negligently,
using wrong chemicals or confusing
test for someone else's.
This
causes you emotional distress, and
two months later you
2. Breach of Duty
17
a. The plaintiff must identify specific conduct that falls short of the
standard of care.
i. Either an affirmative act or a failure to do something.
ii. Write this by using the words "plaintiff will allege that the
unreasonable conduct here was that defendant . . . [insert
fact from the problem]."
iii. In addition to fact, you must give a reason. "Plaintiff will
argue this was unreasonable because . . . [insert reason]."
b. Res Ipsa Loquitor
i. This comes up when there is no factual information
regarding what the defendant did wrong. This comes up in
an information vacuum.
ii. E.g., Plaintiff walks down the street in England, passing by
Defendant's bakery. As he walks by, a wooden barrel of
flour falls and bops him in the head, landing him in the
hospital.
iii. Two elements:
1. The accident as of a type normally associated with
negligence
a. This showing is essentially an argument based
on probabilities. A confession of ignorance and
an appeal to statistics.
b. Often times you need expert testimony to show
that the accident is normally associated with
negligence
2. The accident that occurred would normally have
been due to the negligence of someone in this
defendant's position
a. This means that the accident was in the control
of the defendant
3. Causation (Factual and Proximate)
a. This is the connector between breach and injury/damages. The
standard way to build that bridge is through a "but for"
argument. But, there is also a "proximate/legal cause" element
of foreseeability.
b. "But for" (Cause in Fact) But for an act constituting a breach of
duty, the result would not have happened.
i. Concurrent Causes
1. When several acts combine to cause the injury but
none of the acts standing alone would have been
sufficient, a "but for" test is applied.
ii. Multiple Defendants Merged Causes
1. Each negligent defendant will release a destructive
force into the world. Those forces will come together
and join with each other and then, as a merged force,
18
Know these
they will hurt the plaintiff. In that case, you can't use
the "but for" test.
a. E.g., two negligently set fires. Dave is driving
his car and is smoking a cigarette. When
finished, he throws the lit cigarette butt into a
pile of leaves starting a forest fire. A half-mile
away, camper Don packs his bags and leaves
without stomping out his fire. The wind blows
the fire into more leaves, causing a forest fire,
burning down Pete's cottage.
2. Apply the "substantial factor" test.
a. Was each breach capable of causing the harm
all by itself?
b. The test for Causation in Fact is satisfied if
defendant's conduct was a "substantial factor"
in causing the injury.
iii. Multiple Defendants Unascertainable Causes
1. E.g., two hunters each fire a shotgun, but only one
pellet hits the plaintiff in the eye. Who caused it?
Impossible to determine.
2. Shift the burden of proof to the defendants to talk
their way out of the case. Whoever talks his way out
gets to go home without liability. If they can't do it,
though, they're jointly and severally liable.
c. Proximate Cause (Legal Cause)
i. This is the Fairness Requirement plaintiff has to convince
that liability is fair and appropriate
ii. Liability is fair if the result was foreseeable to the
defendant.
iii. Exam Tips: Foreseeability influencers
1. How much time has passed? Generally, the more
contemporaneous, the more foreseeable.
a. Only a guideline, not a take-it-to-the-bank rule.
2. Distance did the consequences take place in the
same area or far away?
3. Weirdness Is what happened something that was
out of the ordinary, peculiar, or surprising? Or is it
routine, conventional, or expected?
4. Exam questions will typically be conditioned on
foreseeability/unforeseeability
iv. Four sets of precedent that, as a matter of law, it's
foreseeable
1. Intervening negligent medical treatment
a. Dave breaks Pete's leg, Pete goes to the
hospital for a cast, and the cast is applied so
19
Strict Liability
Animals
1. Domesticated Animals
a. Pets and Agricultural Animals
b. There is generally no strict liability
c. You must show that the defendant was negligent.
d. Exam Tip: If you keep a domestic animal but have knowledge of
its dangerous propensities, then the law will hold you strictly
liable.
i. This means danger attributed to the specific creature, not
an attribute generally attributed to the creatures.
ii. E.g., bulls can charge and donkeys can kick. These aren't
iii. E.g., if your dog has previously bitten someone, you now
have knowledge that your dog is a dog of dangerous
propensity.
e. Exception to the Exception:
i. Even if you have knowledge of dangerous propensities, you
will never be liable for someone trespassing on your land.
2. Wild Animals
a. Strict liable always
b. Exam tip: Safety precautions are irrelevant. Examiners will load
a question with safety precautions to try to trick you.
Abnormally Dangerous Activities
1. Two part test pulled straight from the Restatement
a. The activity is one that creates a foreseeable risk of serious harm
even when reasonable care is exercised
i. "We lack the technology to make the activity safe."
ii. We can't get the risk level down low enough.
b. The activity cannot be common in the location where conducted.
It's out of place and out of context.
2. Hallmark abnormally dangerous activity:
a. Blasting any type of explosive
i. Demolition of buildings, in connection with coal mining, it
could be farmers using dynamite to blow up tree stumps
b. Handling and transporting highly toxic/dangerous chemical or
biological materials
i. E.g., ebola virus
21
ii. Exam Tip: All warnings are not created equal. Even
though there may be some warning language, the question
may arise whether it is adequate or sufficient. A warning
on page 14 of an instruction manual may not be sufficient.
3. Defect existed when the product left the defendant's hands the
product has not been altered in the chain of custody
a. This element is presumed satisfied if the product moved in
ordinary channels of distribution
4. Plaintiff must be making a foreseeable use of the product at the time of
injury
a. A foreseeable use is not necessarily the intended use. Many
inappropriate uses are nonetheless foreseeable.
i. E.g., you stand on a chair to get an item on a high shelf
and the chair collapses. Is it foreseeable that people stand
on chairs? Yes.
Defenses to Strict Liability
1. Same as above, including comparative negligence
Nuisance
Nuisance unlikely to be an essay topic
1. Interference with your ability to use and enjoy your real estate to an
unreasonable degree.
2. Inconsistent land use adjacent landowner doing something that make
the other's life miserable
a. E.g., smoke belching factory next to an asthma hospital
3. Nuisance can be due to spite. Examples:
a. Loud music all the time
b. Running a crack house
4. Key point no matter what led to the problems, it's whether the degree
of interference is too much. We live in a crowded world, and we have
to tolerate a certain amount of annoyance from our neighbors. It's got
to be something that's a big deal.
a. The nuisance must be "seriously annoying."
b. "Definitely offensive"
5. Multiple Choice balance interests and the seriousness of the
interference
23
24
a. Three defendants, (Tom, Dick, and Harry) all found liable. Tom
pays the full amount. Tom wants to collect from Dick and Harry.
i. Comparative Contribution
1. The jury decides percentages to the codefendants.
2. Tom bears the risk of insolvency
3. Exceptions two cases where the out-of-pocket can
get all the money back, known as Indemnification
a. Vicarious Liability If you have been held
vicariously liable and the active tortfeasor is in
the action, the vicariously liable person can
recover from the active tortfeasor via
indemnification
b. Products liability where the out-of-pocket
money defendant is a retailer, the retailer can
recover from the manufacturer.
5. Loss of Consortium Claim
a. In any case where the victim is married, no matter the tort, the
uninjured spouse is given a separate cause of action in addition
to the actual victim.
b. That cause of action is said to be derivative; any defenses that
could be asserted against the actual victim can be asserted
against the uninjured spouse
c. Types of Consortium
i. Having to pay outside people to come in and do things that
the injured spouse normally did
ii. Loss of society loss of a companion. You get this in a
consortium claim
iii. Loss of sex pay me because now I'm not getting laid.
25