Professional Documents
Culture Documents
CHECKLIST
I. Intentional Torts (7) In fact pattern, to pull issues, look at:
a. BATTERY Plaintiff’s Harm
b. ASSAULT o Personal?
c. FALSE IMPRISONMENT o Personal or Real Property?
d. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS* o Reputation/Privacy?
e. TRESPASS TO LAND Defendant’s Conduct
f. TRESPASS TO CHATTELS o Intentional?
g. CONVERSION o Negligent?
o Abnormally Dangerous?
II. Defenses to Intentional Torts (3) o Product Related?
a. CONSENT
b. PROTECTIVE PRIVILEGES (SELF-DEFENSE, DEFENSE OF OTHERS, DEFENSE OF PROPERTY)
c. NECESSITY
III. Defamation
a. COMMON LAW ELEMENTS (4)
b. CONSTITUTIONAL ELEMENTS IF PUBLIC CONCERN (2)
c. DEFENSES (3)
V. Negligence
a. DUTY ((1) Foreseeable? (2) Standard of Care? Default + Special)
b. BREACH
c. CAUSATION (Actual & Proximate)
d. DAMAGES
e. DEFENSES (3)
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I. INTENTIONAL TORTS
a. BATTERY
i. (1) Δ commits a harmful or offensive contact
1. (judged by reasonable person standard, can be direct or indirect)
2. (contact is offensive if would not be permitted by a reasonable person of ordinary
sensitivity)
ii. (2) to the Π's person
1. (including anything connected to the PL),
iii. (3) intent, and (attempt from assault will transfer into a battery)
iv. (4) causation
b. ASSAULT
i. (1) Act by Δ putting Π in reasonable apprehension
1. (knowledge, not fear)
2. (apparent ability is enough)
ii. (2) of an immediate harmful or offensive contact (battery) to Π
1. (words not enough – must be coupled with conduct)
2. (words may negate apprehension)
3. (future threats do not count)
iii. (3) intent
iv. (4) causation
c. FALSE IMPRISONMENT
i. (1) An act or omission by the Δ that confines or restrains Π
1. (threats are sufficient, but not future threats or moral pressure)
2. (omission/failure by Δ to act if under pre-existing duty to act in a certain way is
sufficient)
3. (Π must be aware of confinement or be harmed by it)
4. (time of confinement is irrelevant)
ii. (2) Plaintiff must be confined in a bounded area
1. (must be no reasonable means of escape that Π can reasonably discover)
iii. (3) intent
iv. (4) causation
v. **Shopkeeper’s Privilege – shopkeeper may detain for a reasonable period of time individuals
who they reasonably believe to be in possession of shoplifted goods**
vi. Damages - Π can recover all foreseeable damages resulting from the tort, including humiliation
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v. Bystander – Δ harms 3rd person, Π suffers severe emotional distress – only actionable if (1)
shows prima facie evidence herself, or (2) is she was present and a close relative of Π and Δ
knew of these.
e. TRESPASS TO LAND
i. (1) an act of physical invasion
1. (By Δ himself, or Δ causing some other tangible object to do so [throw a rock over prop])
2. (Δ doesn't have to know he cross a boundary or intend to be on another's property, just
on to be property through a volitional act)
ii. (2) that interferes with Π's exclusive possession of land
1. (Includes airspace above and soil below for reasonable distance)
iii. (3) intent
iv. (4) causation
f. TRESPASS TO CHATTELS
i. (1) Act by Δ that interferes with Π's right of possession in a chattel
1. (Interference can be either intermeddling (damaging chattel), or dispossession
(depriving Π of possession))
2. (Slight interference (whereas conversion is severe))
ii. (2) intent
iii. (3) causation
iv. (4) damages
1. (Either to chattel or possessory right, measure of damages is cost of repair)
g. CONVERSION
i. (1) Act by Δ that interferes with Π’s right of possession in a chattel
1. (Interference can be either intermeddling (damaging chattel), or dispossession
(depriving PL of possession))
ii. (2) interference is so serious that it warrants the Δ to pay chattel’s full value
1. (Look at length of interference and extent of damage)
2. (Measure of damages is FMV at time of conversion or replevin)
iii. (3) intent
iv. (4) causation
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iii. Consent implied by law when necessary to save life or other important interests in
person or property
ii. (2) Did Δ stay within the boundaries (SCOPE) of the consent given?
c. NECESSITY
i. Only a defense to PROPERTY TORTS.
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III. DEFAMATION
a. To prove the prima facie case of defamation, a Π must prove (1) Δ made a defamatory statement, (2) of
or concerning plaintiff, (3) publication, and (4) damages. If the defamation involves a matter of public
concern, the Constitution requires Π to prove two additional elements: (1) falsity, and (2) fault.
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Defamation: a) defaming statement 2) of/concerning plaintiff c) published to a 3rd party d) pick a person/matter below
(bar will likely make it clear which category-- they could do a hybrid type in which case talk about the ones that apply):
Statement about private Private person statement matter of Public figure/official **usually
person/private matter public concern testing this
Libel: damages presumed 1.plaintiff must prove stmnt is false 1.ID why public figure
Slander per se: damages presumed 2.plaintiff can prove actual malice or 2.apply NY times to prevail:
Slander: prove up actual injury for plaintiff can show def was negligent in Plaintiff must prove:
damages making stmnt and that plaintiff was 1.stmnt is false
actually injured 2. def acted w/ actual
malice/knowledge of falsity or
reckless disregard for the truth
*damages presumed
a. Dual life fact pattern - no tort from someone carrying info from one social
sphere of a person to another and disseminating that info
1. Newsworthy Exception—of and concerning public matter and public has the
right to the information, so long as the news company has nothing to do with getting the info,
2. right to publish/freedom of press under 1st amend
e. DEFENSES:
i. Consent – see above – to all 4 privacy torts
ii. Absolute/Qualified Privileges – only false light and disclosure
1. Absolute Privilege: stmts b/w spouses, stmts made in government proceedings (judicial,
legislative, executive), and in “compelled” broadcasts
a. Showing of malice, abuse, or excessive provocation does NOT remove privilege
2. Qualified Privilege: reports of official proceedings, public interest, or when
publisher/recipient/or both have a legitimate interest in the stmt's info (ex: references,
recommendations, stmts to police, etc)
a. Can lose qualified privilege if (1) statement not within scope of privilege (must
confine to relevant matters), or (2) speaker acts with malice (no good faith
reasonable belief that stmt is true).
f. DAMAGES
i. For all privacy torts, Π can also recover for emotional harm
V. NEGLIGENCE
a. To prove the prima facie case of negligence, a Π must prove the following elements: (1) Duty, (2) Breach,
(3) Causation (both actual and proximate cause), and (4) damages.
b. (1) DUTY
i. (1) To whom is duty owed? A duty of care is owed to foreseeable plaintiffs. No duty is owed to
unforeseeable plaintiffs. Cardozo view = foreseeable zone of danger. Andrews view = everyone
is foreseeable.
1. Exception: rescuers are within zone of danger even if far away when Π injured, where Δ
negligently put himself or another in peril (danger invites rescue)
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b. (2) Professionals
i. Standard: Professionals have a duty to exercise the skill and knowledge normally
possessed by members of that profession in good standing (EMPIRICAL standard, so
need an expert witness).
1. Drs Duty to Disclose Risk of Treatment to patients
2. Medical Specialists – national standard of care
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c. (2) BREACH
i. Δ breached his duty of care when (FACT). This is unreasonable because reasonable people
under similar circumstances (REASON)…
ii. Res Ipsa Loquitur:
1. This doctrine applies when a Π cannot identify how the Δ breached his duty. Π can
establish breach under this doctrine by showing:
a. (1) That the accident that occurred would not normally occur unless someone
was negligent
b. (2) The accident or injury is NORMALLY due to the negligence of someone in
the defendant’s position. Usually shown where instrumentality causing injury
was in DF’s control.
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generally liable for foreseeable results that are caused by either foreseeable
(dependent) intervening forces and usually by an unforeseeable intervening
force (unless the result of a crime or tort of third person). Common intervening
forces where Δ will be found liable:
i. (1) Intervening Medical Negligence
ii. (2) Intervening Negligent Rescue
iii. (3) Intervening Reaction or Protection Forces
iv. (4) A Subsequent Accident or Disease
b. Δ is not liable for unforeseeable results caused by intervening forces.
Unforeseeable intervening forces are superseding.
e. (4) DAMAGES
i. “Eggshell Skull” Principal:
1. If injury is foreseeable, the Δ is liable for full extent of injury even if the full extent of the
injury was not foreseeable. A Δ takes his Π as he finds him.
f. DEFENSES:
i. (1) Contributory Negligence (MINORITY) – Negligence (lack of reasonable care) by Π that
contributes to Π's injury. Π recovers nothing, unless Δ had the last clear chance to avoid the
accident. NO DEFENSE TO WANTON/WILLFUL CONDUCT.
ii. (2) Assumption of Risk – Π denied recovery if (1) knew of risk, and (2) voluntarily proceeded in
the face of the risk.
1. Strict products liability: commercial seller who places a defective product into the stream of commerce is
liable.
i. Defect in design-
a. Consumer expectation test-expectation and product failed to conform to that expectation and
was unreasonably dangerous as a result
b. Risk-utility/feasible alternative design test=product could be made safer without substantially
increasing price or decreasing utility; look for some feasible alternative design
ii. Defect in warning=look to see that manufacturer provided instructions for safe use and warned for
any hidden or non-obvious dangers (design and warning go hand in hand)
iii. Defect in manufacturing=mistake that got off the product line; doesn’t conform to the
manufacturers specifications and is unreasonably dangerous
iv. Defect has to Cause the injury
2. Negligence=knew or should have known about the defect, briefly talk about negligence elements (this will
be quick)
1. Duty—foreseeable plaintiff
2. breach-negligent conduct of the defendant leading to the supply of the defective product
3. causation—actual (but for) and proximate (foreseeable)
4. damages-
5. defense to negligence-contributory, comparative, and assumption of risk
3. Warranty under ucc (need to prove the 4 elements for each below; a) is the standard for each warranty, b-d
is the same definition as negligence standards)
i. Implied warrant merchantability=a)goods of average acceptable quality and fit for ordinary use b)
breach c) causation d) damages
ii. Fitness for particular purpose=a)seller has reason to know the purpose of the goods sold and buyer
relies on this assurance b)breach c) causation d) damages
iii. Express warranty=a)promise concerning the goods that becomes part of the basis of the bargain --
anything said by manufacturer or sales person is express warrant; look for affirmation b)breach c)
causation d) damages
4. Misrepresentation=seller liable for misrepresentations of facts concerning the product where:
1) the statement was a material fact concerning quality or uses of the good and the seller intended to
induce reliance by the buyer
2) causation-actual (shown by buyer’s reliance) proximate (same as negligence)
3) damages (same as negligence)
5. Intent=desired to hurt people or knew to substantial certainty that a harmful/offensive contact will result
Not likely to get products liability question on anything other than STRICT PRODUCTS LIABILITY:
b. Strict Products Liability –Where a commercial supplier places a product into the steam of commerce
and it is defective they are strictly liable for the injuries caused by the defect.
Must Meet 5 Elements
i. (1) Defendant must be a COMMERCIAL SUPPLIER
1. Applies to commercial lessors of goods, and all parties in chain of distribution.
2. Does NOT apply to casual sellers or service providers.
ii. (2) Stream of commerce=placed into the marketplace where consumers can purchase
iii. (3) Δ must have Produced or Sold a defective product (most important on essay)
1. Manufacturing defect – When product emerges from assembly line different and more
dangerous than the other products made properly. Shown where product failed to
perform as safely as ordinary consumer would expect.
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2. Design defect – product has design defect if there is another way the product could
have been built, that meets the 3-part test – an alternative design:
a. (1) Design is safer than the marketed version
b. (2) Design is economic or cost effective
c. (3) Practical alternative – doesn’t defeat purpose of product (utility)
a. Consumer expectation test-expectation and product failed to conform to that expectation and
was unreasonably dangerous as a result
b. Risk-utility/feasible alternative design test=product could be made safer without substantially
increasing price or decreasing utility; look for some feasible alternative design
3. Inadequate Warnings – has defect if a product cannot be made physically safer and it
still has residual risks not obvious to consumers, and does not have adequate warnings.
a. Presumption, if you failed to warn, that an adequate warning would have
prevented the injury - can be used to establish actual cause
4. Foreseeable Misuse - Suppliers must anticipate rsbly foreseeable misuse
5. NOTE - Retailer may be held liable for defective product even if it had no opportunity to
inspect the product before selling it
v. (5) Damages
i. All parties have a duty to mitigate damages so long as it is reasonable to due so
vi. DEFENSES
1. Assumption of risk and Unforeseeable misuse (contributory negligence is NO defense)
b. ECONOMIC TORTS
i. FRAUD/DECEIT (INTENTIONAL MISREPRESENTAITON)
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c. LITIGATION TORTS
i. MALICIOUS PROSECUTION
1. (1) Institution of criminal proceedings against Π
2. (2) Termination in Π’s favor
3. (3) Absence of Probable Cause
4. (4) Improper Purpose
5. (5) Damages
ii. ABUSE OF PROCESS
1. (1) Wrongful use of process for ulterior purpose
2. (2) Definite act or threat against Π to accomplish ulterior purpose
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i. Joint/Several Liability
1. MBE default is that joint tortfeasors are jointly and severally liable
2. Where two or more negligent acts combine to proximately cause an indivisible injury,
each negligent actor will be jointly and severally liable.
3. If the injury is divisible, then liability is apportioned to each Δ according to their amount
of liability.
a. Exception: where Δs act in concert with one another, each is jointly and
severally liable for entire injury, even if divisible.
b. Exception: States that have abolished joint/several liability – each Δ is liable
proportional to their fault.
ii. Contribution
1. Where there are multiple liable defendants, majority approach is to allocate the
damages from each Δ according to their amount of liability – and gives Δ who pays more
than his share of damages to have a claim against another Δ.
iii. Indemnity
1. Indemnity allows a Δ to shift the entire loss to another Δ.
a. By Contract: Available if stated in contract
b. Vicarious Liability: It is available in vicarious liability situations – where
vicariously liable party can shift loss to the active tortfeasor.
c. Strict Products Liability: Retailer can seek indemnification from manufacturer of
defective product. Can push liability up the distribution chain.
c. LOSS OF CONSORTIUM
i. This is a derivative claim. In any case where the victim of a tort is a married person, the
uninjured spouse gets a separate and different cause of action in his/her different name. That
cause of action allows the uninjured spouse to recover three types of damages that would
otherwise go uncompensated:
1. Loss of services (wife injured, need compensation for her duties)
2. Loss of society (companionship and company)
3. Loss of sex (not getting laid, want some cash)
ii. Parent also has claim for loss of CHILD’s services, but child does not have claim for loss of
parent’s services.
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