Intentional Torts

Definition: the defendant intentionally committed the elements that define the tort
Intent is satisfied if the defendant desires the consequences of her acts or is substantially
certain that her acts will cause the elements of the tort to occur.
Recklessness by the defendant is not enough
**the act must be intentional or substantially certain, the consequences need not be**
Transferred Intent: an individual who intends an act or consequence against one party and instead
injures a third party is liable to the third party for the injuries suffered
If you have the intent to commit one tort and you commit another the intent still transfers
*only transfers between the original five torts (battery, assault, false imprisonment, trespass
to land, trespass to chattels)
**Restatement does not adopt transferred intent generally** Transfer only allowed between
battery and assault; allow the intent to commit a battery or assault to satisfy the requisite
intent required under the definitions for both torts
Battery: intentional infliction of a harmful or offensive bodily contact
Intent: it is not necessary that D desires to physically harm P; D has the necessary intent for
battery if it is the case either that:
D intended to cause a harmful or offensive bodily contact
D intended to cause an imminent apprehension on Ps part of a harmful or offensive

bodily contact; if D merely intends to put P in fear of an imminent harmful or offensive

contact, thats sufficient intent for battery
Harmful or Offensive Contact: If the contact is harmful i.e., it causes pain or bodily
damages this qualifies
Battery also covers contacts which are merely offensive, i.e. damages to a reasonable sense
of dignity.
Ordinary and reasonable contacts are not included
Where defendant has knowledge of plaintiffs sensitivity?
Awareness: It is not necessary that P have actual awareness of the contact at the time it
occurs
Contact beyond level consented to: battery can occur where P consents to a certain level of
bodily contact, but D goes beyond the consented to level of contact

Extends to personal effects: A battery may be committed not only by a contact with the
plaintiffs body but also by a contact with her clothing, an object she is holding, or anything
else that is so closely identified with her body that contact with it is as offensive as contact
with the body would be.
Unforeseen Consequences: once it is established that the defendant intended to commit a
harmful or offensive touching (or intends any other tort) and such contact occurs, the
defendant is liable for any consequences which ensue, even though he did not intend
them, and in fact could not reasonably have foreseen them.
Assault: intentional causing of an apprehension of harmful or offensive contact;
Intent: the defendant must either have intended to cause the apprehension of contact, or
have intended to cause the contact itself

If the defendant merely intends to frighten the plaintiff and does not intend an actual
contact, he has the necessary intent (intended apprehension)
If the defendant intends to commit a battery, and does not intent to put the plaintiff in
apprehension of a contact, he also has the necessary intent (attempted battery) It is not
necessary that the defendant bear malice or hostility to the plaintiff, or intend to harm her
(no hostility required)
Intent Transfers
Actual contact or apprehension required requires an effect; P must either actually undergo a
harmful or offensive contact, or be put in immediate apprehension of such a contact
Unsuccessful prank or bluff where P knows that D cannot do any harm does not suffice
Feared contact with ground or independent object suffices
Imminence of threatened contact: it must appear to the plaintiff that the harm being
threatened is imminent
Threats of future harm cannot constitute assaults
The defendant must have what appears to the plaintiff to be the present ability to commit the
threatened contact
Awareness: the plaintiff must be aware of the threatened contact
Apprehension doesnt have to reach the level of fear for the assault to be actionable
If it appears to the P that even without action on her or a third persons part, the defendant
will be unable to make good his threat of harm, there is not assault
A plaintiff who is unusually timid may not recover for assault where a normal person would
not have an apprehension of contact
Restatement provides that it does matter if the act would not have put a person of ordinary
courage in such apprehension as long as the defendant intents to put the plaintiff in
apprehension of an immediate bodily contact
Threats to third persons not actionable
The plaintiff must believe the defendant has the ability to carry out the threat; it is not
necessary that the defendant in fact have the ability to carry out the threat
It does not matter if the defendant abandons her plan; the tort of assault is committed as
soon as the plaintiff suffers apprehension
False Imprisonment: the intentional infliction of confinement
Intent: the plaintiff must show that the defendant intended to confine him
The defendant knew with substantial certainty that the confinement would result
Bounded area: the plaintiff must be confined within definite physical boundaries
The plaintiff is held within certain limits, not prevented from entering certain places
Means of escape: it is irrelevant that there is some means of escape from the area of
confinement, provided that the plaintiff does not know of this means
Even if the plaintiff knows of the means, he will not lose his action unless the means is
reasonable (only if the plaintiffs use of it would not be physically dangerous to the plaintiff,
harmful to his clothing, offensive to his reasonable sense of decency or personal dignity or
dangerous to some third person)
Means by which confinement enforcement: if plaintiff is physically confined, that is obvious,
but there are other ways to confine a person that would constitute false imprisonment

Use of threats: if the defendant threatens to use force if the plaintiff tries to escape
(and appears to have the ability to do so), the confinement exists.
Harm to others: if the defendant threatens to harm a third party if the plaintiff tires
to escape, confinement exists
Harm to property: threats to plaintiffs property may constitute the necessary duress;
harm has to be imminent, threats of future harm do not suffice
Duty to aid in escape or release: if the plaintiff consents to initial confinement, there
will be a false imprisonment if the defendant is under a duty to release the plaintiff,
or to help him escape, and does not do so
Awareness: most courts have held that the plaintiff must be aware of his confinement while
he is suffering it
Restatement provides that either the plaintiff must be aware of the confinement, or he
must suffer some actual harm

Intentional Infliction of Emotional Distress: intentional or reckless infliction, by extreme and

outrageous conduct, of severe emotional or mental distress, even in the absence of physical harm.
Intent: the necessary intent is broader than the other intentional torts
D desires to cause P emotional distress

D knows with substantial certainty that P will suffer emotional distress

D recklessly disregards the high probability that emotional distress will occur
**Transferred Intent is not applicable unless the defendant directs her conduct at a member of the
immediate family of the plaintiff and the plaintiff is present**
The plaintiffs presence must be known to the defendant, so that the mental distress could
have been reasonably anticipated by the defendant
Emotional distress where other tort attempted: if the defendant attempts to commit some
other tort, and the only effect on the plaintiff is emotional distress, the tort of IIED has not
occurred
Extreme and Outrageous: he must show, among other things, that the defendants conduct
was extreme and outrageous
Individual Circumstances: in determining if Ds conduct was extreme and
outrageous, the court will take into account the particular characteristics of the
plaintiff, and the relationship between him and the defendant
When the defendants conduct is only extreme and outrageous because of the
plaintiffs particular characteristics, the defendant must have been aware of these
circumstances
Actual severe distress: he must then show that he, the plaintiff, in fact suffered severe
emotional distress

Medical effects: the plaintiff must always show that his mental distress was
sufficiently severe that he sought medical aid
Physical harm: most modern courts appear not to require physical harm
Trespass to Land: occurs when either (1) D intentionally enters Ps land, without permission; (2) D
remains on Ps land without the right to be there, even if she entered rightfully; or (3) D puts an

object on (or refuses to remove an object from) Ps land without permission

Intent: intentional interference with Ps interest in property
if D has the intent to commit a physical contact with Ps land, D will have the requisite intent
for trespass even if his decision is the result of a mistake (even a reasonable one)
it can be a trespass to fly over Ps property if it substantially interferes with Ps use and
enjoyment of his land
Trespass to Chattels: any intentional interference with a persons use or possession of a chattel **D
only has to pay damages, not the full value of the property**
If P loses possession of the chattel for any time, recovery is allowed even if the chattel is
returned unharmed
Conversion: intentional interference with Ps possession or ownership of property that is so
substantial that D should be required to pay the propertys full value
Intent: all that is required is that D have intended to take possession of the property;
mistake as to ownership is not a defense
Distinguished from trespass to chattels; courts consider several factors
Duration of Ds dominion over the property
Ds good or bad faith
The harm done to the property
The inconvenience caused to P
Different ways to commit
Acquiring possession
Most courts hold that a bona fide purchaser of stolen goods is a converter, even if there is no
way he could have known that they were stolen.
If P is successful with her tort of conversion, D is required to pay the full value of the goods,
but gets to keep the goods.
Defenses to Intentional Torts
Consent
Express Consent
Implied Consent (from custom or other circumstances)
Lack of Capacity
Exceeding the Scope
Consent to criminal acts
Majority Rule: Ps consent is ineffective if the act consented to is a crime
Minority Rule: Ps consent to the defendants criminal act is always effective
Self-Defense

Privilege: a person is entitled to use reasonable force to prevent any threatened harmful or offensive
bodily contact, and any threatened confinement or imprisonment
Apparent Necessity: Self-Defense may be used when there is a real threat of harm and also where D
reasonably believes that there is one
Only for Protection: applies only where D uses the force needed to protect himself against harm
Retaliation: D may not use any degree of force in retaliation for a tort already committed
Imminence: D may not use force to avoid harm which is not imminent
Verbal provocation: D may not use force in response to taunting or insults
Degree of Force: Only the degree of force necessary to prevent the threatened harm may be used; if D
uses more force than necessary, he will be liable for damage caused by the excess
Deadly Force: D may not use deadly force unless he himself is in danger of death or serious bodily
harm
***RETREAT***
Some courts hold that the defendant may stand her ground and use deadly force against an attack,
even if she could retreat with complete safety
One who is attacked must retreat if she can do so safely; do not hold one who is attacked in her own
home to retreat
Restatement: requires the person who is attacked to retreat (if she can do so safely) in some situation
He person being attacked may always refuse to retreat, if she is willing to use only non-deadly force
to repel the attack
She may not use deadly force to defend herself, if she is attacked somewhere other than her dwelling,
and she could retreat to safety; if the person is attacked within her dwelling, she does not have to
retreat (except that she must retreat if she is being attacked by someone who also lives in the same
dwelling)
Defense of Others: all courts allow a bystander to intervene to defense a third party using reasonable
force
Degree of Force: the intervenor may not use a greater degree of force than appears necessary to repel
the attack
Reasonable Mistake
Stand in shoes: mistake not privileged
Restatement: Reasonable mistake is privileged; get the same defense as someone privileged with
self-defense

Defense of Property: property owner may use only as much force as appears necessary to protect the
property
Verbal demand required first, along with time for the intruder to obey

Force intended to inflict death or serious bodily harm is never reasonable to protect mere
property
A reasonable mistake that an individual is not privileged to intrude or use property is not an
excuse
Unless the victim intentionally or negligently causes the actor to believe the intrusion is privileged
Mechanical devices that cause would cause death or serious bodily harm are not allowed
Only privileged to use a similar degree of force as the individual can use; With the use of non-deadly
mechanical devices (barbed wire) must have a warning posted
Recapture of Property: An individual may use reasonable force to recover property when in hot
pursuit of the wrongdoer
Adds that the self-help of the victim will be directed at the actual wrongdoer
Actor is liable for damages or injuries even if the mistake is reasonable
Necessity: allows the defendant to interfere with the property interests of an innocent party in order
to avoid greater injury
Public necessity: when the defendant appropriates or injures a private property interest to protect
the community. **Complete Defense**
Private necessity: an individual has the privilege to interfere with the property right of another to
avoid a greater harm, but must compensate the plaintiff for the interference.
Punitive Damages: an additional sum, over and above the compensation of the plaintiff for the harm
suffered
Why have punitive damages? More likely to see them with intentional torts, deterrence, punishment
for past conduct or retribution, incentive to bring suit, when compensatory damages are insufficient
Intent requirement: Reckless/intentional
Ratio of compensatory to punitive should be in the single digits

Negligence

Duty: a legally recognized relationship between the parties

Standard of Care: the measure of the duty owed (usually included in breach of duty)
Negligence liability only flows where the defendants conduct has fallen below the relevant
standard of care
Only imposed where the defendant engages in unreasonable risk creation
**considers foreseeable risks only**
Liability depends on whether B (burden) < P(probability)*L(injury)
Where the burden of avoiding the harm is less than the probability of that harm occurring
multiplied by the likely seriousness of the harm if it does occur
o Probability: the likelihood of harm
o Loss: Gravity of injury
o Burden: burden of adequate precautions
Breach of Duty: failure to meet the standard of care
Causation
Cause in fact but-for test: Plaintiffs harm must be connected to breach of duty
Proximate cause: there are no policy reasons to relieve the defendant of liability
Damages: the plaintiff suffered a cognizable injury
Reasons for Negligence
Create incentives for defendants to act reasonably under the circumstances
o

Prevent foreseeable outcomes

What is reasonable?
o Foreseeability of harm
o Feasibility of protecting against harm
o Costs of precautions
o Availability of alternatives
Who is the reasonable person?
Objective Standard: Clearer and well-defined, incentive to discover standard of care, provides
precedent, more demanding of defendants
Role of custom in negligence: Always evidence of either negligence or non-negligence, people can
agree to customs and still be negligent, job of judge is to determine relevance and prejudice, you have
to know what a reasonable person should do

People with physical disabilities are judged against the reasonable person with **insert physical
disability**
Reasonable Child: Judge against a child of like age, intelligence and experience
**When a child is engaging in an adult activity they are held to the adult standard of care**
Mental Illness: Mental disabilities are not treated like physical disabilities; Most jurisdictions dont
account for sudden onset insanity.
Professional Standard of care: One who undertakes to render services in the practice of a profession
or trade is required to exercise the skill and knowledge normally possessed by members of that
profession or trade in good standing in similar communities
Need expert testimony to establish professional standard of care
Plaintiff must show that defendants deviation from customary practice caused injury
Expert must not only say that HE would not follow policy, but that a reasonable member of
the field would not either

Medical Malpractice: Standard of care either based on: Locality Rule (Doctor in same or similar
circumstances) OR National Standard of care
Informed Consent: duty to disclose material risks (risk is material if likely to affect patients
decision); patient must show that he would have chosen differently had he known the
risks
Breach: failure to disclose the material risks under reasonable doctor standard OR
reasonable patient
Causation: patient would have opted out of treatment
Damages: manifestation of injury that was not disclosed
BASED ON EITHER:
Professional standard of care (what a reasonable doctor would disclose)
Reasonable Patient (what a reasonable patient would want to know)
Subjective Patient Standard (what this patient would have wanted to know)
EXCEPTIONS: common knowledge, emergency, detrimental to best interest
Moore v. UCLA: doctor didnt divulge information regarding profit he was earning based on patients
treatment; found to have violated consent based on reasonable patient standard
Loss of Chance: An action in negligence can be maintained where probably reduction in the
decedents chance for survival can be proven, even though the decedent would not have lived to
normal life expectancy
Some jurisdictions permit recovery in such cases only if the lost chance was a substantial
factor in producing the harm (more than 50% chance of survival in the beginning)

Other jurisdictions have analyzed the issue by viewing the patients injury as the loss of the
opportunity for a better outcome, rather than as the death or other outcome; can recover
proportion of full amount of damages

Attorney Malpractice: the relationship establishes duty, the custom of the profession sets the
standard of care, and breach of duty is shown by the attorneys failure to meet that standard of care
Plaintiff/Client must show that: but for the attorneys negligence, she would have won her original
suit
Negligence Per Se: criminal statute (or administrative regulation or municipal ordinance) used as
the standard of care for civil case of negligence
Judge must examine the statute in order to determine two things:
1. Whether the statute was designed to protect against the type of harm suffered by the plaintiff
2. Whether the class of persons designed to be protected by the statute includes the plaintiff
Plaintiff still has to show causation and damages
Plaintiff must be member of class of people that statute intends to protect
Dont adopt the statute if there are multiple ways the statute can be interpreted
If you are found liable under neg. per se, you are liable for the harm unless you have a really
good excuse.
Courts are reluctant to adopt a statute as the standard of care when no common law duty exists
If there are specific requirements in the statute, it is easier to adopt as the standard of care
More specific, the easier it is to prove negligence
Licensing statues usually not admissible as standard of care
IF the judge decides not to adopt the statute as the standard, move back to the reasonable person
std.
3 ways to view Neg. per se
1. Unexcused violation of the statute is negligence
2. Rebuttable presumption of negligence
3. Evidence of negligence (something jury can reject)
The finding of an excused violation frequently exculpates the defendant from liability because the
excuse shows the reasonableness of the defendants conduct.
Compliance with a statute is merely relevant evidence of reasonableness
**A drug manufacturer that places a warning in compliance with govt policy may still be
found negligent if a reasonable company would have exceeded the govt standard**
Restatement: An actor is negligent unless he can prove a specific excuse
1. The violation is reasonable because of the actors incapacity
2. He neither knows or should know of the occasion for compliance
3. He is unable after reasonable or due care to comply
4. He is confronted by an emergency not due to his own misconduct
5. Compliance would involve a greater risk of harm to the actor or to others

Res Ipsa Loquitur: where a jury may infer that the defendant acted unreasonably without any
other proof; three factors:
1. Accident would not have happened without the defendants negligence
a. Dont have to limit all other causes, just have to show that it was the defendants
actions more likely than not.
b. If you can only suggest that the defendants negligence was the cause, then that is not
enough
2. Defendant had exclusive control of instrumentality
a. Must show that the instrumentality is most likely the cause
3. Plaintiff has done nothing to contribute to their injuries
The plaintiff seeks to establish:
1. That the harm-causing event was probably due to negligence
2. That the defendant was probably the culpable party
Usually there is no need for expert testimony because it is based on common sense and general
knowledge; ex. Sponge left in patient after surgery
May be used in medical malpractice cases; plaintiff will usually need expert testimony to establish
that the harm she suffered does not ordinarily occur in the absence of negligence (deviation from the
custom)
**Only available when there is no other evidence as to what could have happened**
**NO RIL when there is direct evidence or any other way to show what happened**
Shifts the burden of proof to the defendant to try and make them explain what happened
Court could hold them negligent if they cannot otherwise prove what happened
Burden of Proof: JURISDICTIONAL SPLIT
Inference of negligence; Res Ipsa permits jury to either accept or reject defendants
negligence> MOST COMMON
Rebuttable presumption of negligence: requires the defendant to come up with an excuse
If you shift the BoP to the defendant, they must explain negligence with evidence
**The facts of the case are such that, more likely than not, defendant must have been negligent, even
if we dont know exactly what that negligence was
JURISDICTIONAL SPLIT
Some require that the plaintiff prove that the defendant has superior knowledge
Most courts and the Restatement do not require that the defendant have greater access to
the facts than the plaintiff

Duty
A person does not have a duty to aid another

Courts consistently have refused to require a stranger to render assistance

There are several contexts in which courts regularly impose liability for failing to render aid
If the defendant created the peril: when the need for rescue arises because of defendants
negligence
Had a special relationship with the plaintiff: considered when one person is depending on
another ex. employer-employee, school-student, business-customer
Undertook or volunteered to act
Had a contractual obligation to act; ex. Lifeguard, babysitter
Duty to act mandated by statute
When you take charge or take affirmative steps to act, then you cannot leave person worse off
than they were before you intervened.
If you are in control of an instrumentality, then there is a duty
TARASOF
Therapist need only exercise that reasonable decree of skill, knowledge, and care ordinarily
possessed and exercised by members of the therapy community under similar circumstances
Had an obligation to take reasonable steps to protect a third party where the therapist knows
or, based on professional standards, should know that the therapists patient presents a
serious risk of physical harm to the third party
o In some juris, duty discharged when police are warned
o the duty to warn extends to readily identifiable victims.
o In others, all foreseeable victims must be warned
o Some jurisdictions dont require warning when mere property damage is threatened
o No duty to warn whatsoever
Foreseeable Plaintiff- the plaintiff must show that defendants negligence created foreseeable risks of
harm to persons in her position
Foreseeable Injury- the defendant owes a duty to foreseeable victims for foreseeable harm
Cause-In-Fact- the defendants culpable conduct or activity was the actual cause of the plaintiffs
injury
But-For: the plaintiff must establish that but for the defendants culpable conduct or activity
the plaintiff would not have been injured
The plaintiff must prove that more likely than not the defendant was a but for cause of her
injury
Substantial Factor Test: the plaintiff may recover from either of the negligent defendants if the
plaintiff can show that the defendants conduct was a substantial factor in causing the injury
Is used in exceptional cases where each defendants negligence is sufficient by itself to have
caused injury to the plaintiff

Joint Tortfeasors- individuals who either act in concert to commit a tort, act independently to
cause a single indivisible tortious injury, or share responsibility because of vicarious liability
Combined Causes: the negligence of each defendant is sufficient to bring about the plaintiffs injury
Concurrent Causes: conduct that combines to cause injury where neither alone would have been
sufficient
Where separate acts of negligence combine to produce a single injury, each tortfeasor is liable
for the entire result even though his act alone may not have caused the result
Alternative Liability: only one defendants negligence is the cause of the plaintiffs injury, it is
impossible for plaintiff to prove which defendant
Where two defendants are simultaneously negligent toward a plaintiff, but only one
defendants negligence caused the plaintiffs injury, plaintiff may recover against either
defendant
The only burden of proof that shifts is causation
**it is crucial for the plaintiff to prove that each defendant was in fact negligent**:
They cannot explain, therefore they are both liable **universally accepted across juris**
Joint and Several Liability- each of the several tortfeasors is fully liable for the entire damage
Proximate Cause: that which in a natural and continuous sequence unbroken by any new
independent cause produces an event without which the injury would not have occurred
There is no standard or rigid rule for proximate cause
A fact-driven analysis of the relationship between the defendants negligence and the
plaintiffs injury
Proximate cause can cut off liability even though there is cause in fact
Foreseeability Test: whether the defendant should have reasonably foreseen, as a risk of her conduct,
the general consequences or type of harm suffered by the plaintiff.
While the result or type of harm must be reasonably foreseeable, the extent and the precise
manner in which the harm occurs need not be foreseeable.
The defendant is relieved from liability if there is a superseding intervening force (an
intervening force is generally characterized as superseding only when its occurrence appears
extraordinary under the circumstances)
In negligence cases, the defendant takes the plaintiff as he finds him
A defendant is liable to the plaintiff in damages for the aggravation of plaintiffs pre-existing
illness due to the defendants negligent conduct
It is not important that the defendant foresee the exact kind of injury that the plaintiff would
suffer

The courts are agreed upon the rule stated in this case when unforeseeable consequences follow from
a physical injury to the person of the plaintiff
A few courts have limited the doctrine to pre-existing physical injuries
Direct Causation Test: a direct cause is generally understood to preclude any intervening force
The plaintiff must prove the absence of any intervening forces
If you are negligent and some damage is foreseeable, you are liable for all damages
There is still liability for foreseeable intervening forces
Where intervening force causes harm of the type we expect liability even if manner is
unexpected
Superseding Cause: intervening forces so highly improbable and extraordinary an occurrence as to
bear no reasonable connection to the harm threatened
Dependent intervening cause: stimulated by the defendants negligence
Independent: not, sometimes can preclude liability, break the causal chain
Rescuers are seen as FORESEEABLE
If you put someone in danger via negligence, you are liable for injury to rescuers
It isnt automatic that rescuers recover: foolishness can play a factor, unreasonable behavior
can break the causal chain
Professional rescuers are generally not able to recover

Defenses to Negligence
Contributory Negligence- the law completely bars plaintiffs claim if the plaintiffs negligence
contributed to the happening of the accident
Her negligence must be a cause-in-fact and a proximate cause of the accident resulting in
injury
Last Clear Chance: instructs the court to ignore the plaintiffs contributory negligence if the
defendants negligence occurred after the plaintiffs contributory negligence
Based purely on chronology
Rstmnt: precludes contributory negligence for a defendant who violates a statuteenacted to
protect a class of persons from their inability to exercise self-protective care ex. Child labor laws
Pure Comparative Negligence: the plaintiffs damages are reduced in proportion to the percentage of
negligence attributed to him
Even if the plaintiffs negligence exceeds that of the defendants
Modified Comparative Negligence: the plaintiff may recover damages, but only if the plaintiffs
negligence either:
1. Does not exceed 50% (50% jurisdictions)
2. Is less than the defendants negligence (49% jurisdictions)
Assumption of Risk: the act or instance of a prospective plaintiff taking on the risk of loss, injury, or
damage; Plaintiff must:
1. Know a particular risk and; plaintiff must have actual and conscious knowledge of the
particular risk

2. Voluntarily; involuntary can range from truly coerced actions to those which would be
unreasonably difficult to avoid
3. Assume it; the plaintiff, by voluntarily exposing herself to a risk, is deemed to consent to that
risk
Express Assumption of Risk: a complete defense to the specific risks that the plaintiff has agreed to
assume; generally enforceable,
Not enforceable if they violate public policy: Involves public interest/duty to public, unequal
bargaining power and need for service, business held open to all, service of great importance
to public
Implied Assumption of Risk: implied by the plaintiffs conduct
Burden of Proof is on the Defendant to show:
1. Plaintiff had actual knowledge of a particular risk
2. Plaintiff appreciated magnitude of the risk
3. Plaintiff voluntarily encountered risk
Primary Assumption of Risk: where defendant has no duty to plaintiff
Secondary Assumption of Risk: D breaches duty to P, then P proceeds anyways after
perceiving the risk
Majority Trend: allow implied assumption of risk to be absorbed into comparative negligence; allows
the jury to treat implied assumption of risk as a partial defense
Landowner Liability
The status of the person entering the land determines the standard of care owed by the land occupier
Some duty is owed to all entrants upon the land, but the extent of that duty caries greatly based on
the entrants status.
Trespassers: cannot act in wanton and willful manner towards trespasser who is known or
discovered
w/ discovered trespassers: duty to warn about hidden dangers likely to cause serious bodily
harm or death **no duty on possessor to discover dangers or eradicate them**
**Some courts created duty to foreseeable trespassers who frequently intrude on limited area
of land; alert them to dangers they wouldnt discover on own (reasonable care)
Licensee: one who enters land w/ landowners permission but for her own purpose or business rather
than for the landowners benefit
Duty to warn of know dangers, not discoverable to licensee (less than reasonable care)
Only known dangers, no duty to inspect

Invitee: comes onto the land with the express or implied consent of the occupier; can be business
invitees (potential financial benefit to the land owner) and public invitees (land held open to the
public at large)
Land possessors must use reasonable care in all the circumstances
If the land possessor knows or should know of a danger on the property, she must either
remedy it or warn the land entrant of its existence where the risk is not known or obvious

Where the danger can be eliminated with little effort or poses sufficient grave harm, a
warning about the danger may be inadequate
Child Trespassers: if foreseeable that child will trespass (landowner knows or should have known)
and encounter dangers (and nonobvious) condition when they trespass, then landowner is liable
Artificial Conditions: where harm is occasioned by an artificial condition or the land possessors
activity, a duty is recognized
Natural Conditions: Static (no duty), Active (reasonable care)
**SOME JURISDICTIONS** reject the classification system; duty owed to persons coming onto the
land is one of reasonableness regardless of the land entrants status **includes trespassers**
Strict Liability
Livestock: liability without fault for harms caused by trespassing livestock
Domestic Animals: keepers of dogs, cats, horses, or other domestic animals are liable for injury
caused by the animal only where the possessor knew or should have known or the animals
aggressive disposition
A possessor with actual or constructive knowledge of the animals vicious tendencies will be
strictly liable for harm, and no measure of care in its keeping will excuse him.
Wild Animals: most jurisdictions follow strict liability for owners or keepers of wild animals that
cause harm even though the possessor has exercised the utmost care.
**Plaintiffs assumption of the risk can serve as a defense**
Abnormally Dangerous Activity: SL for abnormally dangerous activities if:
- Existence of high degree of risk of harm
- Likelihood that harm will result is great
- Inability to eliminate risk using due care
- Not common usage
- Extent to which value of community is outweighed by dangerousness
To apply strict liability, the harm that results must be a harm that is foreseeable
Vicarious Liability
Situations where one person held liable for activity of another:
- Concerted tortfeasors
- Concurrent tortfeasors whose acts cause an indivisible injury
- Where A creates a risk that B will negligently cause injury
Vicarious Liability where:
- Torts committed within scope of employment
- Employer not negligent
- Have to show employee is negligent first
Usually considered within the scope of your employment if you are furthering your employers
business; generally comings and goings are not covered
Employers generally not liable for acts of Independent Contractors; factors to consider:
- Employers ability to control details to work
- Whether actor is engaged in distinct occupation or business
- Whether employer has to supervise

- Who supplies tools, place of work

Non-delegable Duties: when duty is imposed by law on the basis of concerns for public safety, D
cannot avoid liability by delegating duty to an independent contractor