A tort is any civil wrong other than a breach of contract, for which the law provides a remedy.

 Two types of fault: Intentional fault, and negligent fault

o Plaintiff has burden of proving Defendant’s fault
Two models of tort liability:
 Economic deterrence model—we want an “ideal number” of torts, incentivizes certain behaviors, punishes others monetarily
—most tort law is grounded in this model.
 Corrective justice model—based on concepts of fairness.
Intent R2d, §8(a)
 Two types of intent:
o Belief intent, acting with a belief that a consequence is substantially certain to follow
o Desire intent, Acting with a desire or purpose that a consequence will follow
Subjective Standard for judging Intent
 Fact finder is to determine what the actor was thinking by drawing inferences from the actors conduct and outward
manifestations of intent.
Transferred Intent, a legal fiction in the name of fairness (Talmage v. Smith)
 Transferred tortious intent—Actor intends to commit one intentional tort against A, ends up committing a different
intentional tort against A, transferred tort intent. This only applies to applies to assault, battery, FI, Trespass to Land, and
trespass to chattels.
 Transferred person intent—Actor intend tort against A, commit same tort against B
 Can have both transferred person and transferred tortious intent at the same time.
Things that are included in intentional tort liability
Children—Garratt v. Dailey—Brian knew to a substantial certainty that Ruth would fall.
 Even a child can form the necessary intent for simple torts like battery
o If they desire, or believe to a substantial certainty, that what they do will make someone go “OUCH!” they have
intent
o Parents are generally not responsible for the torts of their children under common law.
 But state legislatures can change anything, including when a parent is liable for the torts of their children
 In Tennessee, the statute makes parents liable for their children’s willful or malicious torts.
 Under this statute, Brian Dailey’s parents wouldn’t be liable.
 The purpose of making it just willful/malicious behavior is to prevent parents from being
bankrupted.
o Parents can be joint tortfeasors with their children.
o Parents can be liable for negligence if they know their child has a dangerous propensity for violence (or arson or
whatever) and they have some ability to control the risks.
Mistakes—Ranson v. Kitner—hunter shoots “wolf” that turns out to be his neighbor’s dog. Mistake does not negate intent.
 Mistakes are not accidents—Kitner still had the desire intent necessary to convert the neighbor’s dog.
o D is liable so long as D had intent to affect the person or property, even if he made a mistake.
Mental insanity—McGuire v. Almy—Insane D is judged by the same standards as a normal person.
 Economic deterrence model—Liability makes ppl who are in charge of D more watchful if those ppl have some interest in
preserving D’s property.
 Corrective justice model—Insane D with lots of money shouldn’t continue in unimpaired enjoyment of that money while his
victim bears the burden.
Transferred Intent—Talmage v. Smith—Throwing stick at A and hitting Talmage=liability
 See transferred intent notes above. Smith used privilege of defense of property, but failed.
Battery
 Elements
o Act: A volitional act
o Intent: Intended to cause a harmful or offesnsive bodily contact (subjective standard)
o Result: such a h/o contact results directly or indirectly (objective standard)
 LSD in the coffee cup=indirect contact, still battery
Two types of Battery
 Harmful battery—Cole v. Turner—the least touching of another in anger is a battery
o Harm not required,
o direct or indirect contact is required
 Offensive battery—Contact that a reasonable person (P) of ordinary sensibilities would find offensive. Fisher v. Carrousell
Motor Hotel
Extended Person Rule, the contact (result) element of battery is fulfilled, when there is an unpermitted intentional contact with
something so closely associated with the person that it's like an extension of the person.
o Canes, walking sticks, etc.
Exclusions:
  The Crowded World exception—Wallace v. Rosen—In a crowded world, a certain amount of personal contact is inevitable
and must be accepted. Absent expression to the contrary, consent is assumed to all those ordinary contacts which are
customary and reasonably necessary to the common intercourse of life, such as a tap on the shoulder to attract attention…
Assault
 Act: Volitional Act
 Intent: Intent to cause imminent apprehension of a harmful or offensive bodily contact
 Result: Imminent apprehension of harmful or offensive bodily contact results
Imminent Apprehension
 Imminent means right now, this second, apprehension is not fear.
 In determining if apprehension in a given case is reasonable, courts use a reasonable person test.
 Present awareness of the act is required in order to have the right mental state (imminent apprehension)
 Words+act in the form of a conditional threat make an assault, e.g., “Your money or your life”
Exceptions:
 Mere words are never an assault, regardless of how threatening
o Unless followed by an overt act
 Words can negate an assault by placing a condition on the assault, “Were you not an old man…”
Common law rule—Western Union v. Hill-- To constitute an actionable assault there must be an intentional, unlawful, offer to touch
the person of another in a rude or angry manner, under circumstances, creating in the mind of the assaulted, a well-founded fear of an
imminent battery, coupled with the apparent present ability to effectuate the attempt, if not prevented. 
False Imprisonment
Elements of False Imprisonment
 Act: Volitional act
 Intent: an intent to confine a person against their will unlawfully
 Result: unlawful confinement results directly or indirectly
 Awareness: P must be aware of the confinement at the time it occurs.
o Remembrance of the confinement isn’t required (Parvi v. City of Kingston)
Things that are FI
 Complete physical barriers
 Threats (to harm P, others, property)
 Assertion of legal authority—regardless of whether the authority is valid or not.
o Reasonable person believes they’re in trouble? Then FI.
Things that aren’t FI
 Blocking someone’s path, refusing admission
 If there’s a reasonable means of escape—no FI—even if P doesn’t know about the reasonable means—Rest. 36
 Sticking around to “clear your name” isn’t False Imprisonment—Hardy v. Labelle’s
Intentional Infliction of Emotional Distress R§46
 Act: Extreme and Outrageous Conduct
 Intent: Intentionally (subjective) or recklessly (objective) causes
 Result: Severe emotional distress to another (reasonable person must suffer such distress)
Extreme and outrageous conduct: The Act
 Serious threats of physical violence can be enough to cause IIED (Siliznoff)
o Insults and/or profanity by themselves are not enough
 Repetitive conduct can transform non-actionable conduct into e&o conduct
 Abuse of persons in a vulnerable position may transform non-actionable conduct into e&o conduct
 Exploiting the known sensitivities of a person may transform non-actionable conduct into e&o conduct
 Consider:
o The age of the individual claiming IIED
o The Context of the setting where the IIED occurred
o The Purpose of the conduct (Coaches)
 Practical Jokes can be
Intentionally or recklessly causing emotional distress
 Hybrid fault standard.
o Requires either the desire or “believes to a substantial certainty” intentional tort standard OR
o Acting unreasonably to create a high probability of severe emotional distress
Severe Emotional Distress results
 Proving actual harm—without which there’s no tort—is a big deal
o Expert witnesses testifying about some diagnosable disorder
 A pre-existing mental condition will not preclude P from recovering but P could only recover for the extent
that his condition was aggravated.
 o Testimony of family members/co-workers/Plaintiff
 Ultimately the jury will look to D’s conduct and determine if it was severe enough to cause IIED
Bystander Liability—R §46(2)
 If C witnesses A’s death/battery/etc., can C recover from B, A’s tortfeasor?
o Yes, if A was an immediate family member
 Even if C doesn’t have resulting physical injury
o Yes, if C has a bodily injury resulting from witnessing A’s death/battery/etc.
 Even if A & C aren’t related.
Trespass to Land
 Act: Volitional Act
 Intent: one intends to enter the property in possession of another, without permission,
 Result: entry results or D causes entry
Entry results
 Usually a thing, sounds/etc. covered by nuisance.
 Wrongfully remaining after right to be there has ended (Staying in your car after the party ends)
 Failure to remove an object that you are under a duty to remove (Rogers v. Board of)
 Shooting over the land is trespass (Herrin v. Sutherland)
 Even if there’s no HARM to the land, this is still a tort because it’s unauthorized entry. Surveyors, etc, aren’t supposed to
trespass when surveying. (Dougherty v. Stepp)
Nuisance
 Nuisance is the substantial and unreasonable interference with the use and enjoyment of property.
Trespass to Chattels
 Act: Volitional Act
 Intent: Intended to interfere with another’s chattel without consent or privilege to do so
 Result: interference causes measurable harm.
Measureable Harm:
 Harm to the chattel itself—the chattel is impared as to its condition/quality/value
 Harm to the possessor who is deprived of the use of the chattel for a substantial time
 Harm to the body of the possessor/to some person or thing in which the possessor has a legally protected interest
Conversion
 Volitional Act
 Intended to substantially interfere with another’s personal chattel without consent or privilege to do so
 Substantial interference with another’s personal chattel causes measurable harm

Consequences to the Plaintiff Defendant's Conduct

Extent and duration of the resulting interference to the Extent and duration of the D's exercise of dominion or control (can
rightful possessor cross over)

Harm Defendant's intent

Inconvenience and expense caused to rightful possessor Defendant's good faith

Differences in Trespass to Chattels and Conversion
 Trespass to Chattels—recover the diminished value of the chattel or actual harm to the possessor/chattel
 Conversion—Full value of the chattel at the time of the conversion.
o Conversion is when someone intentionally exercises dominion or control over a chattel and seriously interferes with
the rights of the owner.
o Where the interference falls short of the complete or very substantial deprivation of possessory rights, the tort is
trespass to chattels, not conversion
The Hat examples
A takes hat believing it to be his own and inadvertently the hat is severely damaged
 Severe adverse consequence but made in good faith
o Conversion b/c of the consequences
 A takes hat intending to steal it, but returns the hat but not before B knows
o No consequences but made in bad faith with a harmful intent
o Conversion b/c of the D's conduct
 A mistakenly picks up hat and, realizing his mistake, puts it back
o No consequences and D's conduct was good
o No conversion and no trespass to chattels
Torts & Proof of Harm
These torts need proof of harm/injury NO PROOF OF HARM REQUIRED

Trespass to Chattels (intentional interference with the chattel Trespass to Land (exclusive possession of land)
of another)

IIED (severe emotional distress) Battery (ouch rule)

Assault (imminent apprehension)

  False Imprisonment (awareness of confinement)

  Conversion (intentional interference with the chattel of another)

Privileges to the Intentional Torts
Consent
Two Types
 Express consent—“I’ll be your sparring partner” negates assault and battery. Suiting up for sparring, also express consent.
 Implied consent—Getting in line for a shot, taking the shot, and taking your vaccination papers is implied consent (O’Brien
v. Cunard)
o Would the RP interpret all the circumstances as manifesting consent?
Scope of Consent
 Going substantially beyond the scope of consent is outside the privilege—ie, “Put up your dukes!” and a knife fight
 Berwyn consented to a kiss, so long as it was normal, the consent is good.
 Operating on anything not previously discussed is outside the scope of consent—Mohr. v. Williams
o Unless it was an emergency
 Professional athletes consent to anything within the rules of the game.
o However, anything OUTSIDE the rules of the game is outside the scope of consent—Hackbart v. Cincinnatti
Bengals
Mistake invalidates consent
 P allows D2 into her home while she’s giving birth, thinking D2 was a doctor. He wasn’t. DeMay v. Roberts
Medical consent
 Explicit consent required except when the patient is unable to give consent or
 There is an emergency (risk of bodily harm if treatment is delayed)
 RP would consent to treatment under the circumstances and the doc has no reason to believe this patient would refuse
treatment under the circumstances.
Self-Defense
If a person reasonably belives they were threatened by a battery, they may use reasonable force to prevent the battery, under the
privilege of self-defense.
 Self-preservation is a natural law
Mistake is allowed
 Don’t have to wait and see that force is necessary
o Just have to prove a reasonable belief
Two part test for Self-Defense
 Were the circumstances such that a reasonable person would believe that they were threatened by a battery?
 Was the amount of force reasonable under the circumstances?
o Proportionate to the threatened battery?
o Deadly force—only reasonable if a reasonable person under the circumstances would believe they were threatened
with deadly force.
 Retreat rule—(minority) if you can retreat safely when threatened with deadly force, you must.
TN law
 You can use deadly force against anyone who is committing a violent felony against you
o Not burglarly
o No booby traps
Defense of Others
If a person reasonably believes a third person is threatened by a battery, they are privileged to use reasonable force to prevent the
battery.
Two part test for Defense of Others
 Were the circumstances such that a reasonable person would believe that a third party is threatened by a battery?
 Was the amount of force reasonable under the circumstances?
Mistake—courts are split
  Some courts say it’s the same as self-defense
 Others say, “Only if the (person you were protecting) is privileged to protect themselves (less leeway)
Defense of Property
If a person reasonably believes they are threatened by a trespass to property, they are privileged to use reasonable force to defend their
property.
 Cannot use deadly force, cannot set booby traps—law favors life over property. Katko v. Briney
Two part Defense of Property test
 Were the circumstances such that a reasonable person would believe that they were threatened by a trespass to property?
 Was the amount of force reasonable under the circumstances to protect the property?
A person can use reasonable force to recover a chattel that has been wrongfully taken from them;
 If they make a demand for the return of the property—Rest. 2d, §77c
 If they are in fresh pursuit
 If they use only the minimum force necessary to recover the chattel
o You can threaten more force than you can actually use
o But does *NOT* allow for mistake
Recovery of property
The Merchants Privilege—Protects merchants against mistake in recovery of property (Bonkowski; guard stopped outside store)
 Decision to detain must be reasonable
 Scope of detention must be reasonable
In TN, may detain on or off premises with probably cause from
 –personal observation, -activation of electronic tag, -from another merchant
o With a reasonable scope of detention
Necessity
The privilege of necessity provides a person with a privilege to commit a tort when he acts to protect life or property from an
independent cause.
Public Necessity—sacrifice for the greater good
 Reasonable person believes there to be an apparent necessity then the action is privileged.
 No damages paid to P when public necessity is the privilege
Private Necessity—Reasonable, prudent Self-preservation under the circumstances.
 Liability is imposed, damages are paid, when privilege of private necessity is invoked.
Surrocco v. Geary (blew up house to prevent fire from spreading); Vincent v. Lake-Private necessity (ship ruins dock in storm)
Negligence
 A duty to use reasonable care under the circumstances
 A breach of that duty to use reasonable care under the circumstances
 Causation between the conduct and the resulting injury
o Causation in fact, or “but for” causation
o Proximate or legal cause,
 direct causation or scope of the foreseeable risk
 Injury results to the interests of others
Duty—discussed next semester, mostly (see below, Palsgraf)
Breach of duty or “negligence”
 What is the standard of care under the circumstance?
o What would a reasonable person do under the circumstances?
 Not subjective (Vaughn v. Menlove)
 Have a duty to have knowledge/investigate (Delair v. McAdoo)
Included in the “reasonable person” standard
 Children behaving in intrinsically adult or intrinsically dangerous ways (Robinson v. Lindsey)
o Held to reasonable person standard, no exclusion, even if it’s an activity children often participate in
 Mentally Ill persons
o Held to reasonable person standard, no exclusion because of mental illness (Breunig v. American Family)
 Emergencies
o Held to RP standard, only change is that there are emergency circumstances. (Cordas v. Peerless)
Excluded in the “reasonable person” standard
 Children behaving as children are supposed to
o Held to standard of reasonable child of like age/intelligence/maturity/training/experience
 Handicapped/disabled persons
o Reasonable person, with that disability. (Roberts v. State)
Professional standard of care
 A professional must possess the skill and learning customary in the profession and must exercise that s&l with reasonable
care. (Boyce v. Brown)
  Locality rule is the old rule, “from the same or similar community”-
 National standard of care applies in some J’s. (Morrison v. MacNamara)
o Expert testimony required to establish P’s SOC & that D breached. Binding in med mal cases.
 Exception: Where obvious to laypersons (Foreign object cases)
 Informed Consent
o Two ways of looking at breach of duty with informed consent
 Professional standard
 What is customarily disclosed to patients for this procedure in this community? (Majority J’s)
 Subjective or Patient standard—duty to disclose material risks
 Reasonable Patient approach (What would a reasonable patient consider material?)
 Subjective patient approach (What does THIS patient consider material?) (holds w/self-
determination)
o Two ways of looking at causation with informed consent (Always causation in fact)
 Objective standard
 Would the reasonable person have had the surgery (Majority J’s)
 Subjective standard
 Would this patient have had the surgery? (true to self-determination, depends on pat’s credibility)
o Scott v. Bradford
Establishing breach, or “How to know what the reasonable person would do, under the circumstances”:
 The Hand Formula B<P*L=Negligence (US v. Carroll Towing)
o Where burden is less than the probability of the loss, multiplied by the severity or gravity of the harm, D=negligent
 Burden includes monetary costs, curtailment of socially useful conduct, and burden on future people in
similar circumstances, includes just posting warning signs
o This formula is the basis for the economic deterrence model of tort law. (Very much a Cost-Benefit analysis)
 Goal: Not to eliminate injury, but to reach an optimal level of injury. Encourages actors to invest in safer
conduct but only to the extent that it is not burdensome to society or individuals.
 Custom Evidence & Expert Witnesses
o Custom Evidence—What is the custom in the industry at the time of the injury? Trimarco v. Klein
 Helps jury establish what the reasonable person would do, but not binding on the jury.
o Expert Witnesses—Required in Med Mal, binding on the jury
 Establishes what the reasonable (engineer, pilot) would do, allows jury to establish (heath v. Swift Wings)
 Negligence Per Se (Osborn v. McMasters, poison)(Stachniewicz v. Mar-Cam, bar)
o Requirements to invoke negligence per se:
 D must violate a criminal statute
 P must suffer the same type of harm that the statute was intended to prevent (judge determines
 P must be in the same class of persons the statute was designed to protect.
 Must have causal connection between violation of the statute and the injury
o If negligence per se applies then, depending upon the jurisdiction:
 All the jury has to find is that they violated the statute+causation, because violation makes D automatically
negligent—Majority approach
 Rebuttable presumption approach—Evidence that it was safer to walk on the street than on the sidewalk—
Zeni-v. Anderson—“D is PRESUMED to be negligent, unless there’s evidence to rebut the presumption)
 Mere evidence of negligence—jury is allowed to use that as evidence of the D’s negligence-most lenient
 Some states have an approach for STATUTES and a lesser approach for ORDINANCES
 Direct Evidence—establishes a fact with no need to draw an inference.
 Circumstantial Evidence—Allows jury to make an inference
o Purpose to establish the actual or constructive notice given to the D of a particular hazard
 Actual notice: D knows
 Constructive notice: D should have known
 Dangerous conditions created by method of doing business increases likelihood of harm and may not need
actual or constructive notice
 Think of the pizza case, Jasko v. Woolworth
 Res Ipsa Loquitor—The thing speaks for itself
o Two Elements: \
 Event must be one that does not normally happen absent negligence
 The instrumentality that caused the accident must be in the exclusive control of the Defendant
o Usually involves simple events—P wakes up in hospital with burn the exact shape of a hot water bottle. Dentist
operates on wrong side of P’s mouth.
o Jury allowed to make inference of negligence as a result of RIL. (Permissible inference approach, majority of states)
 Some states use a “presumption of negligence” or rebuttable presumption approach
  Shifts the burden to the D to make him show that he was not in exclusive control and/or not neg.
o Multiple Defendants usually not applicable, except in med mal cases like Ybarra, where they will be J&S liable.
Burdens of Proof
 If a party bears the BOP as to the issue, she has the duty to produce evidence establishing every fact necessary to support that
issue
 The burden of proof in civil litigation is the “Preponderance of the evidence” or “more likely than not” standard
 Plaintiff has TWO BOP’s in tort cases
o Burden of going forward with the evidence and avoiding the directed verdict
 The plaintiff must produce sufficient evidence to convince the trial judge, viewing the evidence in the light
most favorable to the plaintiff, that reasonable jurors COULD find that the plaintiff has proved her case by
a preponderance of the evidence.
o Burden of persuasion and convincing the jury they have proven their claim
 Defendants bear the burden of proving any elements of an affirmative defense/privilege
Causation
Causation in Fact
Causation in Fact uses the “but for” test.
 But for the defendant’s negligence, the injury would not have occurred
o Or if no CIF-“It cannot be said that but for the defendant’s negligence, the accident would not have occurred.”
 Hill v. Edmonds, “But for the driver’s negligence, the accident wouldn’t have occurred. But for the truck driver’s
negligence, the accident wouldn’t have occurred.
o CAN HAVE MORE THAN ONE CAUSE IN FACT
Concurrent Causes (Anderson v. Minneapolis, twin fires)
 Where two events concur to cause harm, and either one would have been sufficient to cause substantially the same harm
without the other, the standard changes from “but for” causation to the “substantial factor” causation standard.
o P must show D’s negligence was a substantial factor in the injury
Alternative liability theory (Summers v. Tice) (Whodunnit?)
 Where two or more D’s are both negligent and there is no way to tell who was responsible for the injury, the burden shifts to
D’s under the alternative liability theory to prove that they were NOT the cause of the injury, otherwise, D’s are J/S liable.
Proximate or Legal Cause
 Direct Cause Test (In Re: Polemis)
 Scope of the Foreseeable Risk test (Wagon Mound)
Direct Cause Test (In re: Polemis)
 We should find D’s liable for all the injury where the consequences follow directly, following a negligent act in an unbroken
and natural sequence
 Does not work with intervening causes
Scope of the Foreseeable Risk Test (Wagon Mound)
 We should find D’s liable for damages only for the consequences of his act that were reasonably foreseeable.
o Ask yourself whether the harm that occurred was part of the risk that made the conduct negligent in the first place.
o “HEY, don’t X or Y will happen.” And if it doesn’t sound ridiculous, D was negligent
 When is something foreseeable?
o When a court says it is. No clear lines.
Palsgraf v. Long Island Railroad
 Cardozo—Plaintiff is an unforeseeable plaintiff outside the zone of danger, therefore the RR did not owe her a duty
o Pins the “proximate cause” or the extent to hold D liable on the DUTY element
 D only owes a duty to those to whom there is a foreseeable risk.
o What’s the harm in dropping a box? Not foreseeable that dropping a box would cause an explosion.
 Andrews—D owes a duty to the world at large
o Foreseeability and direct cause are “hints”
Intervening causes
Two types of intervening causes
 Negligent intervening causes
 Acts of God
An intervening cause is a force that comes into play after the D’s negligent act has occurred.
 We have the original negligent act: ONA
 The intervening cause: IC
 The Result:
The issue in every intervening cause case is if we let the ONA off the hook.
 IF either the IC or the same general result IS foreseeable, then the ONA will remain liable.
o The IC is not superseding in this case.