TORT LAW RULES

INTENTIONAL TORTS [ABC-FITT]

Assault:
An intentional act that causes a reasonable apprehension of an imminent battery. No contact is
required, but the plaintiff must be aware of the defendants act that caused the apprehension. The
defendant must have the ability and opportunity to carry out the threat immediately.
Battery:
An unprivileged intentional act resulting in harmful or reasonably offensive contact with the
plaintiff or some extension of the body.
Conversion:
An intentional substantial interference with plaintiffs possession of chattel, resulting in
deprivation of said possession. !iffers from trespass to chattels in that the interference
substantially affects the value of the chattel and the plaintiff is entitled to the full value of the
chattel at the time of the conversion".
False Imrisonment:
An intentional act or threat of an act that unlawfully confines the plaintiff to an identified area.
The restraint must be against the plaintiffs will. #laintiff must be aware of the confinement. The
confinement does not have to be for any particular length of time and there is no apparent means
of reasonable escape.
Intentional In!li"tion o! Emotional #istress$
An intentional, extreme and outrageous act which causes the plaintiff severe emotional distress
of a type a reasonable person would suffer under the same circumstance, unless the defendant
was aware of plaintiffs unusual sensitivity. $motional distress can give rise to parasitic
damages in separate tort actions, such as assault or battery".
Tresass to Lan%:
An intentional act by the defendant which causes unauthori%ed entry onto the plaintiffs land or
real property by self, a third party or physical ob&ect. !efendant is liable even if no damages are
incurred or s'he believed the entrance was lawful".
Tresass to C&attels:
An intentional act for the purpose of causing unauthori%ed interference with plaintiffs chattel
which results in physical damage, unauthori%ed use, or movement.
#e!enses to Intentional Torts [#ARN CO'S]:
#is"iline:
!efendant is privileged by virtue of position to use necessary, &ustified and reasonable force for
discipline and control. !efense to false imprisonment and battery".
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Aut&ority o! La($
Arrest:
)aw enforcement officers acting within their territorial and sub&ect matter &urisdiction may use
reasonable force to arrest a person if the officer has probable cause to believe the person has
committed a crime. *iti%ens may ma+e an arrest ,or, in some &urisdictions, may detain the
defendant- to prevent a felony or breach of the peace committed in the citi%ens presence. .ome
&urisdictions require a misdemeanor to be committed in the officers presence before the officer
can ma+e a warrantless arrest. !efense to false imprisonment and battery".
S&o)eeer*s 'rivile+e:
A storeowner who reasonably suspects a person of stealing merchandise may use reasonable
force to detain the person for a reasonable time to conduct an investigation and summon police.
!efense to false imprisonment".
Re"ature o! 'roerty:
#roperty owners have a limited privilege to trespass or use reasonable force to recapture
property, i.e. reta+e possession of land or chattel that has been wrongfully ta+en. !efense to
trespass to land, trespass to chattels, false imprisonment, assault and battery".
Ne"essity$
!efense to trespass to land, trespass to chattels, and conversion in an emergency/ defendant is
privileged to use reasonable minor force"
'rivate Ne"essity:
A privilege to act to prevent a threatened in&ury resulting from a cause not brought about by the
person claiming the privilege. 0here the defendant acts to protect a private interest, the privilege
is more limited than with public necessity. The defendant may trespass onto private property to
prevent in&ury to self and'or property, or to prevent in&ury to a third party or property/ the
defendant is responsible for damages to plaintiffs land or property.
'u,li" Ne"essity:
A privilege to act to prevent a threatened in&ury resulting from a cause not brought about by the
person claiming the privilege. 0here the danger affects the entire community, or a large part of
it, the defendant is &ustified in acting to prevent harm to that group. There must be an immediate
peril to the community, and there must be a need for the defendant to destroy private property in
order to prevent the damage to the community as a whole. 1f the defense is successful, there is no
liability for damages to the plaintiffs land or property.
Consent:
The plaintiffs express words" or implied conduct" consent is a defense to all intentional torts.
*onsent must be effective/ some plaintiffs are legally incapable of consenting2minors or
mentally incompetent2or by statute i.e. statutory rape offenses" or an act that is illegal. *onsent
may not be obtained by fraud or duress.
#e!ense o! Ot&ers:
A person may use reasonable force to defend a third party from apparent immediate wrongful
bodily harm. 3nder the ma&ority view, the 4good .amaritan5 is not liable if s'he reasonably and
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honestly believed s'he was helping the victim. 3nder the minority view, the defender 4steps into
the shoes5 of the third party/ thus the defender may use only the amount of force which the third
party was privileged to use. !efense to assault and battery".
#e!ense o! 'roerty:
7easonable force may be used to protect property in the defendants possession, i.e. prevent
apparent trespassers from entering, e&ect apparent trespassers, prevent ta+ing or damage of
personal property. Absent a threat to defendants life, deadly force may not be used to defend
ones property. A homeowner is not required to retreat. !efense to assault and battery".
Sel!-#e!ense:
A person may use reasonable force to defend against immediate bodily harm. !eadly force may
be used only if the defendant is threatened with immediate danger to life or great bodily in&ury.
3nder the ma&ority view, no retreat is necessary/ a minority of &urisdictions require retreat if it is
reasonably safe for the defendant to do so. A defendant is not privileged to claim self8defense if
s'he was the aggressor unless there was an attempt to withdraw. !efense to all intentional torts".
NE-LI-ENCE .+eneral %e!inition/$
A failure to exercise the degree of care that a reasonable person would use in the same situation,
thereby exposing others to unreasonable ris+s of harm, wherein the defendant owed a duty,
breached the duty, was the actual and proximate cause of the in&ury to the plaintiff, and the
plaintiff was in&ured damages".
-eneral #uty o! Care:
)egal obligation to conform to a standard of care to protect others from harm.
Se"ial #uty o! Care !or:
Common Carriers:
9eld to a high standard of care to use the utmost care and diligence to protect customers from
harm.
Lan% O""uiers to Tresassers:
)and occupiers are not liable for in&ury to trespassers caused by the land occupiers failure to
reasonably put the land in a safe condition. .ome &urisdictions have abandoned rules related to
the intruders status and choose to focus on the foreseeability of harm. 3nder the ma&ority rule,
once the presence of the trespasser is discovered, there is a duty to use reasonable care to avoid
in&uring him or her tolerated or discovered trespassers". The minority view is that the land
occupier is only responsible for willful and wanton conduct resulting in in&ury to the trespasser.
Lan% O""uiers to Tresassin+ C&il%ren [Attra"tive Nuisan"e #o"trine]:
)and occupiers are liable to trespassing children if the occupier should anticipate children being
at the place of danger, the occupier +nows or should +now of the condition, the child doesnt or
is unable to appreciate the danger involved, and the ris+ to the child is greater than the utility of
the condition to the occupier.
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Lan% O""uiers to Li"ensees:
A licensee comes onto the land with the possessors consent for benefit to the licensee. The
possessor owes the licensee no duty to inspect and owes no affirmative duty to ma+e the
premises safe. The possessor must warn the licensee of +nown concealed dangers on the
property.
Lan% O""uiers to Invitees:
An invitee enters with consent for benefit of the possessor. The possessor is under a duty to warn
the invitee of +nown dangers, and the possessor also must ta+e reasonable care to discover and
fix dangerous conditions on the property. Thus, there is an affirmative duty to ma+e the premises
safe. The obligation only extends to the area of invitation.
Lan%lor%s:
)andlords must warn tenants of dangerous conditions and exercise reasonable care to ma+e
common areas safe/ landlords are liable for negligent repairs to such areas. The person who
occupies the premises is responsible to invitees, licensees, and trespassers, even though s'he only
rents the home or apartment.
0ealt& Care 'rovi%ers:
;ust act with the same training and experience of professionals in that same field.
C&il%ren:
9eld to the standard of care of a child of the same age and experience, unless the child is
engaged in an adult activity in which case the adult standard is used ,e.g. operating a motori%ed
vehicle-.
'&ysi"ally #isa,le% #e!en%ants$
9eld to the standard of care of a reasonable person with the same disability in the same
circumstance.
Stan%ar% o! Care in Emer+en"ies$
9eld to the standard of care of a reasonable person confronted with the same emergency
circumstances.
Non!easan"e:
<ailure to act, a passive failure to ta+e steps to protect others from in&ury.
-eneral Rule:
0ith some exceptions, nonfeasance does not serve as a basis for liability.
E1"etions an% 2uali!i"ations$
0here there is a special relationship between the parties ,e.g. common carriers have to aid
passengers in peril, restaurant owners must protect patron in cases of fire, &ailer has duty to aid
prisoner who is hurt, parent must protect child, etc.-. 0hile a duty generally is not owed to
rescue, a defendant who caused the peril has a duty to try to aid the plaintiff. 1f one chooses to
come to the aid of another, the =ood .amaritan cannot leave the victim in a worse position than
s'he was found. There may be a statutory obligation to aid ,e.g. police officers enforcing orders
of protection in domestic violence situations-.
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Brea"& o! #uty:
<ailure to act to reasonably to protect the plaintiff from foreseeable harm.
3iolation o! Statute:
A statute may be interpreted as establishing the standard of care required for all reasonable
persons. The plaintiff must be in the class protected by the statute, the harm must result from a
violation of the statute, and the violation must not be excused.
Learne% 0an% Formula:
? is less than ) x # where ?@defendants burden to avoid the ris+ of harm, )@ gravity of
potential harm, and #@ probability of harm that could occur from defendants conduct.
Res Isa Lo4uitur:
A doctrine of law which permits the finder of fact to find breach of duty absent direct proof of
such negligence. The plaintiff must show that the instrumentality causing the harm was under the
control of the defendant, the harm would not ordinarily occur without negligence, and the harm
was not caused by the plaintiff. 0here 71) applies, the burden of overcoming the presumption
of breach is shifted to the defendant.
Causation:
The plaintiff must show that the defendant was the actual and proximate cause of the plaintiffs
in&uries.
A"tual Cause:
9as the defendants act or omission caused in&ury to plaintiffA
But For Test:
?ut for the defendants act or omission, the plaintiff would not have been in&ured. The harm
actually resulted from the act or omission.
Su,stantial Fa"tor Test:
0here two or more causes have led to in&ury, the defendants act will be considered the actual
cause if the act was a material and substantial factor in bringing about the event.
5oint an% Several Lia,ility:
Boint torfeasors are defendants that act together to cause the plaintiffs in&ury. They are &ointly
and severally liable for the plaintiffs total damages. $ach of the tortfeasors is liable for the entire
damage award.
Con"urrent Tort!easors$
*oncurrent tortfeasors are defendants whose independent acts cause the plaintiffs in&uries. They
are &ointly and severally liable for the plaintiffs total damages. $ach of the tortfeasors is liable
for the entire damage award.
'ro1imate Cause:
!efendant is liable only for harms that were reasonably foreseeable.
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Un!oreseea,le 'lainti!! Limitation .'als+ra! situation/$
)iability is limited to harms sustained by a plaintiff within the 4%one of danger5 as a result of the
defendants acts that should have been reasonably foreseen by the defendant.
Intervenin+ A"t:
A negligent defendant is liable for any harm resulting from an unbro+en chain of causation
following the tortious act, absent an intervening act. An independent intervening act occurs after
the defendants negligence and negates liability. <oreseeable intervening acts do not brea+ the
causation chain/ unforeseeable acts brea+ the chain because the initial negligence is no longer the
proximate cause of the in&ury.
T&in S)ull 'lainti!! #o"trine:
!efendant ta+es the victim as s'he finds him. *ourts do not require that the type of in&ury
suffered by the plaintiff be foreseeable.
#e!enses:
$xcuse or mitigate what otherwise would be actionable negligence.
Contri,utory Ne+li+en"e:
The negligence of the plaintiff, no matter how slight, bars recovery.
Last Clear C&an"e:
Allows a plaintiff to recover despite contributory negligence if the plaintiff can show that the
defendant had the last clear chance to avoid in&uring the plaintiff.
Comarative Ne+li+en"e:
'ure Comarative Ne+li+en"e:
Negligence on the part of the plaintiff is not a bar to recovery, however, the plaintiffs recovery
is reduced by his or her negligence. 1n 4pure5 comparative &urisdictions the plaintiff is not
barred from recovery even if the plaintiff is largely at fault.
'artial Comarative Ne+li+en"e:
1f the plaintiffs fault is greater than CDE, the plaintiff is barred from recovery.
Assumtion o! t&e Ris):
A plaintiff who +nowingly places him or herself in a position of ris+ by express or implied
agreement, or +nows and appreciates the ris+s and voluntarily sub&ects him or herself to the ris+s,
is barred from recovery for negligence.
3i"arious Lia,ility:
A defendant may be &ointly liable for the actions of another, i.e. under the doctrine of respondeat
superior. An employer, for example, is responsible for the torts of an employee committed within
the scope of employment.
STRICT LIABILIT6:
)iability imposed without the requirement of showing that the defendant intended to interfere
with the plaintiff or breach a duty owed. The plaintiff need only establish that in&ury was caused
proximately by one of the activities listed below.
F
'ossession o! Animals:
.trict liability is imposed upon owners of wild animals or vicious domestic animals that the
owner +nows to be vicious.
A,normally #an+erous A"tivities:
Activities involving a high degree of ris+ of serious in&uries to persons or property ,e.g. use of
dynamite, roc+et testing, maintaining nuclear reactors, and crop dusting-.
'ro%u"ts Lia,ility:
Those in the chain of production of defective, unreasonably dangerous products, are liable to the
consumer for resulting in&uries based on negligence, breach of express warranty, breach of
implied warranty, or strict liability in tort.
'roer 'lainti!!:
There need not be privity with the manufacturer as the seller or manufacturer has the duty to
inspect and warn potential plaintiffs, i.e. all people that might reasonably be expected to use or
otherwise be in&ured by the product.
'roer #e!en%ant:
Those in the chain of production ,e.g. the manufacturer, designer, wholesaler, and retailer-.
#e!e"t:
Tyes o! #e!e"ts:
!esign, failure to warn, manufacturing, inadequate testing, inadequate inspection, breach of
warranty, defective products.
7anner o! 'roo!:
#laintiff must show that the product was the cause of the in&ury, that it was defective, and that the
defect was present when it left the defendants control. ?reach may be established on the basis of
71) when the plaintiff can not prove who caused the defect.
Brea"& o! Warranty:
3** 68:(G gives the benefit of express and implied warranties to the buyer and family and
household members of the buyer ,some &urisdictions extend the protection to all persons-.
E1ress:
.eller ma+es a material representation as to a products safety, durability, or performance.
Imlie%:
3** 68:(> provides that a seller impliedly warrants that the product sold is fit for the ordinary
purpose for which it is made.
#EFA7ATION:
1ncludes the torts of slander and libel.
#e!amatory Statement: A statement which causes the plaintiff to be ridiculed or scorned.
The statement must be of and about the plaintiff.
H
'u,li"ation:
The statement must be heard by someone other than the plaintiff.
Li,el:
!efamation resulting from the written or printed word. *onsidered more serious than slander
because libel is more permanent.
Slan%er:
!efamation in spo+en form, not permanently preserved.
Ne( 6or) Times v8 Sullivan$
A public official cannot recover for defamation unless s'he can show the statement was made
with actual malice, that is, with +nowledge that it was false, or with rec+less disregard for
whether it was false.
-ert9 v8 Wel"&:
#rivate persons engaged in public controversies need not prove actual malice before recovering
for defamation.
IN3ASION OF 'RI3AC6:
Intrusion into Se"lusion:
1ntentional intrusion upon the solitude or seclusion of another or his or her private affairs or
concerns. This is the intrusion into the victims 4%one of privacy5.
Aroriation:
Appropriating for ones own use or benefiting from the name or li+eness of another ,e.g. the
unauthori%ed endorsement of a product-.
'u,li" #is"losure:
#ublication of private facts that are highly offensive to a reasonable person and are not of
legitimate public interest.
False Li+&t:
#ublication of false facts that a reasonable person would ob&ect to. The publication causes the
plaintiff embarrassment, inconvenience, or loss of reputation.
CONTRACT INTERFERENCE$
Inter!eren"e (it& E1istin+ Contra"t:
!efendants intentional and improper interference with +nowledge that a contract exists, causing
financial losses to the plaintiff.
Inter!eren"e (it& 'rose"tive A%vanta+e$
There must be a valid contract between the plaintiff and a third party/ the defendant must +now
of the contract or economic expectancy/ the defendant intended to interfere with the contract or
expectancy/ the defendant actually interfered/ and plaintiff suffered financial losses.
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7ISRE'RESENTATION:
#e"eit:
There must be a material misrepresentation/ the defendant +new the statement was false/ the
defendant intended to induce reliance on the statement/ the plaintiff &ustifiably relied on the
misrepresentation/ and plaintiff was in&ured as a result.
Non%is"losure$
!efendants breach of duty to reveal material facts causing plaintiffs reasonable reliance on
misleading appearances and in&ury.
Ne+li+ent 7isreresentation:
!efendants accidental breach of duty to provide accurate information causing plaintiffs
reasonable reliance and in&ury.
NUISANCE:
'u,li" Nuisan"e$
3nreasonable conduct that causes substantial interference with the plaintiffs right to use and
en&oy public rights or resources.
'rivate Nuisan"e:
3nreasonable conduct that causes substantial interference with the plaintiffs right to use and
en&oy his or her land.
#A7A-ES:
Comensatory:
!amages awarded as compensation, indemnity, or restitution for harm suffered by the plaintiff.
*an include both pecuniary and non8pecuniary losses.
'roerty #ama+e$
)ost or destroyed property at fair mar+et value/ damages valued at repair cost to a maximum of
fair mar+et value.
E"onomi" #ama+es$
)ost wages, lost profits caused by damage to property if the plaintiff had a proprietary interest in
the damaged property, and economic damages caused by negligent performance of a duty
established by contract recoverable by those the contract was intended to benefit.
'ersonal In:ury$
#ast and future medical costs, pain and suffering, and lost income.
7ental #istress$
Traditionally not recoverable without physical in&uries or physical manifestation of mental
distress. ;odernly, this has been relaxed and plaintiff can recover where the mental distress is
sufficiently manifested ,e.g. loss of sleep, clinical anxiety or depression-.
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'&ysi"al In:uries Cause% ,y Fri+&t$
3nder the ma&ority view a plaintiff can recover for physical in&uries caused by fright resulting
from negligence.
Ne+li+ent In!li"tion o! Emotional #istress$
!efendant is liable for mental distress suffered by bystanders, witnesses, rescuers, and relatives
of accident victims caused by the negligent in&ury to a third party. The plaintiff was close to the
in&ury by time, place and'or relationship and suffered severe emotional distress. .ome
&urisdictions require a physical touching or impact/ others require a physical manifestation of the
emotional distress,
Loss o! Consortium$
9usbands, and modernly wives, can recover for loss of consortium because of in&uries to spouse.
Claims ,y 'arents !or In:ury to C&il%ren$
3nder common law parents could claim loss of labor or services by the child. ;odernly, courts
re&ect this cause of action/ the child, however, can bring an action through the parent or guardian
on his or her behalf.
Claims ,y C&il%ren A+ainst 'arents$
A child may bring a claim against a parent for in&uries resulting from a specific act of negligence
in which s'he failed to properly supervise the child.
Wron+!ul #eat&$
#laintiff brings a claim for losses resulting from the defendants negligent acts that caused the
death of another person ,e.g. loss of income, consortium, companionship-.
Wron+!ul Li!e$
*laims brought by children with birth defects against parents +nowing about the defect at the
time of pregnancy and not aborting/ re&ected by courts.
*laims brought by children with birth defects against medical professionals because they were
born with defects and medical conditions due to the negligence of the defendants in failing to
diagnose and warn the parents/ generally not accepted by courts.
Wron+!ul Birt&$
*laims brought by parents against medical professionals that, due to their negligence, an
unwanted child was born. These are claims that the medical professional failed to act responsibly
to prevent the birth ,e.g. vasectomy improperly performed- or failed to act reasonably to discover
and inform parents about fetal birth defects that would have resulted in their deciding to abort the
fetus. 1ncreasingly, these claims have been supported by courts.
'unitive:
Awarded when a tort is committed with malice. !esigned to punish and deter egregious conduct.
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