Torts Outline

***compare to Gilbert’s

Tort recovery is contingent upon two primary variables: the type of harm alleged by the ∏ and
the nature of the ∆’s alleged conduct. Compensable tortious harms are generally divided into
personal injury, property damage, and emotional distress, invasion of intangible interests such as
reputation and privacy, and economic harm. The nature of ∆’s conduct corresponds to 3 main
bases of liability—intent, negligence, and strict liability.

INTENT—conscious desire that a result will occur OR knowledge that a result will occur OR
knowledge that a result is substantially certain to occur.
-∆’s conduct manifested through a volitional act
-insane people are liable as a matter of public opinion
-child may or may not be liable depending upon maturity, experience and training
-Transferred Intent Doctrine; ∆’s wrongful intent is transferred from intended victim to
actual victim or from intended tort to committed tort
a. must have 2 object to apply
b. originally applied to 5 intentional torts; A, B, FI, TtoL and TtoC
c. Modernly limited to A, B and FI

Intentional Torts to Persons

ASSUALT—1. intentionally 2. placing of another in reasonable apprehension 3. of an immediate

battery (harmful or offensive touching) 4. w/o consent or legal justification

-“Act” must be volitional; words alone are not sufficient unless ∆ knows ∏’s special
susceptibilities
-conditional threats may negate apprehension
-∏ must have awareness, unlike battery
-Actual apprehension is the test—irrelevant if a reasonable person would not have been
placed in apprehension
-fear is not required; only to be placed in apprehension
-future threats are NOT sufficient
-∆ must have an apparent present ability to cause touching.
-**Compensatory Damages and Punitive Damages are recoverable; actual damages not
needed

BATTERY—1. intentional, 2. harmful, or offensive touching of another 3. without consent or

legal justification

-“harmful” touching is one which injures, disfigures, impairs or causes pain

-“offensive” touching is if it would offend a reasonable person’s sense of personal
dignity
-most trivial touching will suffice
-∏’s hypersensitivity is insufficient except where the ∆ has knowledge of ∏’s
hypersensitivity
-volitional/intentional do not apply to unconscious or reflexive actions
-instrumentality will suffice; cars, bats, guns can be used by volitional movement of ∆’s
body parts
-awareness not necessary for this tort
 -Beware of Assault
-law holds intentional wrongdoer liable for direct or indirect consequences whether or not
foreseeable
-motive not necessary BUT where “malice” (intent to injure) is present, ∆ will be held
liable for punitive damages.
-DAMAGES
Nominal Damages; where no harm is suffered but a “nominal” amount of $1 is
awarded nevertheless.
Compensatory Damages; to compensate for damages suffered
1. General Damages; are non-pecuniary damages from touching—
embarrassment, pain and suffering, disfigurement or disability (non-
quantifiable)
2. Special Damages; specific and identifiable economic losses—such as
medical bills, lost wages etc…
Punitive Damages; exemplary damages apply when ∆’s act was motivated with
intent to injure or harm
1. Jury discretion; they must be instructed on the criteria of whether or
not punitive damages should be considered
2. State law usually requires post-trial review and appellate review of
award amount
3. Constitutional; 8th Amend against excessive fine not applicable in
tort cases among private parties. *Due Process Clause can be
violated if ∆ did not have adequate notice of the possible severity of
penalty. Adequate notice is:
a. Reprehensibility of conduct by ∆ toward ∏ under governing
state law
b. Disparity between compensatory and punitive award
c. Difference between the punitive award and possible criminal
and administrative penalties for such conduct. Most courts
use 9:1 ratio as the de facto constitutional limits.

FALSE IMPRISONMENT—1. intentional 2. (physical or psychological) confinement of a

person of another 3. (w/i fixed/specific boundaries 4. for any period of time) 5. w/o consent or
legal justification
-Words alone my be sufficient – legal authority
-Time period immaterial
-∏ must have no reasonable means of escape for confinement to exist
1. ∏ under no duty to seek out an unreasonable means of escape
-Threats of future confinement are not sufficient
-Awareness: 2 theories
1. ∏ must be aware of the confinement, or
2. If ∏ is not aware, he must be damaged to recover (Restatement)
-Confinement can be caused by physical force, threats or duress on persons, family or
even property
-Filing complaint will not be FI but a false complaint can be prosecuted for malicious
prosecution
-Damages; Compensatory, punitive and damages for any reasonable escape
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS—1. conduct of extreme and
outrageous nature 2. which is intended to cause, 3. and it does cause 4. severe emotional harm.
-Words alone may be sufficient along with reckless conduct for intent
Inference can be made if the ∆ has knowledge of ∏’s particular sensitivities
-conduct my exceed all bounds of decent behavior to be extreme and outrageous
-∏’s sensitivities must be weighed (is ∆ aware of ∏’s sensitiveness) but general
insults/gestures would not qualify, except in some case with common carriers and public
utilities and when harassment pursuant to state and federal statute
-Totality of circumstances must be considered
-∆ must be aware of presence of ∏ for ∏ to recover on IIED from D’s battering of a 3rd
person (especially family if ∏ is family of 3rd person).
-Transferred intent does not apply
-Causation
Early view: Physical injuries required
Modern view: Distress alone suffices
-the emotional distress must be more than just fear, shame grief—more than what a
reasonable person could be expected to endure
“Eggshell psyche” Rule: can be liable for this if ∏ is suffering from an emotional
or mental condition
-IIED is the ONLY intentional tort which requires actual damages; severe emotional
distress—nominal damages will not qualify
-DEFENSES;
Common Law: defense of reasonable mistake or good faith are not present here
as the outrageousness of the conduct
Constitutional: 1st Amendment—freedom of speech, religion and press
-Damages: compensatory and punitive, except where speech is protected

Intentional Torts to Property

TRESPASS TO LAND—1. intentional 2. entry upon land 3. in possession of another 4. w/o

consent or legal justification.
1. Intent: do an act that causes the intrusion onto the land or know w/ substantial
certainty that his action would cause entry—if no intent, consider negligence but not
allowed recovery w/o damages and no punitive, unlike intentional torts
2. Entry upon land: by ∆ or by another person or object by ∆’s conduct—intrusions by
intangibles can be considered nuisance or trespass in some courts
3. In possession of another: ∏ in actual possession or entitled to immediate (not future
interests) possession. In adverse possession, the owner cannot sue the dispossessor
for trespass as he is in actual possession.
-Extent of Possession/airspace: except for landing and takeoffs, owners has no right
above minimal flight altitude (public airway)
*“immediate reaches” (between 50 and 500 feet) are below public airways and
are protected but deemed privileged as long as it doesn’t create a nuisance
—“interfere substantially with owner’s enjoyment.
-Unforeseeable harm--∆ liable harm; ∏ gets heart attack after confrontation with
trespasser
-Damages: at least nominal damages to prevent prescriptive right and see general rules
above
TRESPASS TO CHATTEL—1. intentional 2. taking or damaging (interference) of the personal
property 3. of another 4. w/o consent or legal justification
1. Intent: the act must be intentional to dispose or damage the chattel of another by the
manner he did, not whether he thought erroneously it belonged to him. Transferred
Intent applies.
2. Taking/Damaging/Invasion of chattel: Dispossession or intermeddling
a. Dispossession: taking w/o consent, taking by fraud, destroying chattel,
barring access to chattel of ∏, interfering w/ rented/leased chattel of ∏
b. Imtermeddling: Damages must be shown
3. Of Another: ∏ must be an actual possessor or have right to immediate possession. ∆
is dealing with ∏’s chattel in a matter inconsistent with ∏’s rights
-Remedies/Damages:
a. Diminution of value or cost of repair and/or
b. Reasonable rental value for dispossession
c. if intermeddling/temporary dispossession, only actual damages

CONVERSION—1. intentional 2. assumption of dominion and control 3. of a personal property

of another 4. without consent or legal justification.

A. Nature of tort; is basically trespass to chattel but destroying it or permanently

depriving the rightful owner of it—they are merely degree of each other
B. Acts of Conversion
a. Substantial Dispossession of chattel; theft, embezzlement etc…
b. Destruction of material alteration of chattel
c. Unauthorized use of chattel causing substantial interference with owner
rights
d. Purchase or receipt of stolen property
e. Sale or disposal of stolen property
f. Misdelivery of chattel
g. Refusal to surrender chattel on demand
C. Effect of Good Faith; an O by ∆ to return chattel only mitigates damages recoverable
if ∆ acquired property innocently and in good faith, only if no damages occurs to
chattel since the acquisition and its return is prompt. At this point, it’s no longer
conversion but rather trespass to chattel. If ∆ sells or misdelivers in good faith, there
is still conversion.
D. Necessity of Demand; Return of Chattel
E. Damages/Remedies;
a. are forced sale and punitive
i. value on forced sale is determine by market or if it fluctuates, but the
highest value between time of conversion and trial
ii. if no market value, resort to actual value/replacement value to the ∏
b. Replevin, Detinue or claim and deliver: return of chattel and damages
sustained during its detention

F. What May Be Converted; property, information, ideas (?)

G. Who May Maintain the Action; the owner or actual possessor
H. Conversion by Bailee:
Misrepresentation can be intentional or negligent.

Defenses and Privileges

(Crazy Silly Double Dealing Dirty Dog Leave Right Now Never Return Ever)

CONSENT: express/actual, apparent and implied

Except: if acquired by fraud, duress, scope of consent exceeded, or apparent mistake if
the person giving consent lacked capacity
-consent to an illegal act: mutual combat or illegal intercourse
a. Majority Rule: no defense in civil action if act involves breach of peace
b. Minority Rule: Defense to civil action unless force used has exceeded consent

SELF-DEFENCE:
1. Reasonable belief of imminent danger and reasonable force used to repel attack.
2. Deadly force privileged where actor believes he is in danger of death or serious
bodily harm.
Duty to retreat: (split)
-Majority: not duty to retreat unless ∏’s conduct intentional
-Minority: must retreat unless retreat would be dangerous, ∆ is in his
home, or ∆ is attempting a valid arrest.
3. No privilege if danger has passed, or if force is excessive (beware of battery)

DEFENSE OF OTHERS:
1. Reasonable force to protect any 3rd person from harm
a. Majority: Step into the shoes of the victim
b. Minority: Reasonable mistake protected

2. Does not apply to officious intermeddler

DEFENSE OF PROPERTY:
1. Non deadly force allowed where the intrusion by the other party is not privileged,
where force necessary to terminate the intrusion, and demand is made (unless futile)
2. Deadly force only where life is in danger
3. No privilege to expel an intruder if to do so would expose him to greater danger

DISCIPLINE: Reasonable force by one in loco parentis with the ∏

DETENTION FOR INVESTIGATION (Shopkeeper privilege):

1. Reasonable grounds
2. Reasonable amount of time
3. Reasonable force
4. Reasonable investigation
5. Majority will permit a reasonable mistake

LEGAL AUTHORITY:
1. Felony
a. If police officer has a reasonable ground to believe that a felony has been
committed and that the person he arrests has committed it, even if no felony
has in fact been committed
 b. Private Citizen privileges only if the felony has in fact been committed or a
reasonable belief exists that the person he arrests committed it, only if a
felony has in fact been committed
2. Misdemeanor
a. A police office is privileged to arrest if a breach of peach exists, and that the
∆ committed the offense in the party’s presence
b. A private citizen is privileged to arrest if a breach of peace exists, a
misdemeanor was actually committed and the ∆ committed the offense, in
party’s presence.
3. Force must be reasonable. Deadly force is allowed if the person poses an imminent
threat to society or the officer.

REENTRY OF LAND WRONGFULLY WITHHELD:

1. Majority: No privileges exists to use any force
2. Minority: Allow reasonable force to regain possession

NECESSITY (PUBLIC): when reasonably appearing to avert a public disaster

1. Complete defense—no liability for damages
2. If ∏ resists, ∆ may use deadly force
3. Media not allowed for 1st Amendment reasons at all

NECESSITY (Private): to protect any person or property from destruction or injury

1. Incomplete defense--∆ liable for damages
2. Entry must be reasonable; as compared to value of item being saved and value of
damage upon entry
a. Privilege to invade another’s land as a private necessity or any reasons
above, supersedes the privilege of the possessor of land or chattel to use
reasonable force to protect property from invasion.

RECAPTURE OF CHATTEL WRONGFULLY WITHHELD

1. A reasonable force permitted to recapture as long as actor is entitled to chattel,
demand made (unless futile), fresh pursuit
a. No mistake, however reasonable, is permitted
b. One may enter anther’s land to recapture chattel as long as demand made,
entry made in reasonable manner, reasonable force. Complete defense.

ENTRY TO ABATE A NUISSANCE:

1. ∆ is completely privileged to invade the land or chattel of another for the purpose of
abating a private nuisance created or maintained on the land or chattels of the other,
subject to the following conditions:
a. ∆ must be the owner or possessor of land or chattels injuriously affected by
the nuisance
b. ∆ must first make a demand that the nuisance be abated, unless it reasonably
appears that such a demand is impractical or useless
c. ∆ must enter at a reasonable time and use only reasonable force to effect the
abatement

Negligence
 A ∆ may be liable to ∏ for negligence if it can be determined that the ∆ owed a duty of care to
the ∏, the ∆ breached that duty, and that the ∏ suffered damage which were actually and
proximately caused by the ∆’s breach.

ELEMENTS OF CAUSE OF ACTION;

THE STANDARD OF CARE
A. The Reasonable Prudent Person
B. The Professional
C. Aggravated Negligence

DUTY
-Act or Actionable Omission by ∆: an act or a willful omission to act when under an
affirmative duty to act.
-Duty of Due Care
a. only element decided by court, others are left for the jury. It’s a 2-step inquiry
1. Whether the ∆ owed a duty of care
2. Scope of Duty
b. General/Default Duty to act as a “reasonable person” would: if the ∆’s conduct creates
a risk of physical harm, the ∆ owes a duty to “do conduct” w/ due care, as a reasonable
person would
1. Objective test—irrelevant that the ∆ thought he was being careful
2. Test reflects moral judgment: not what an ordinary person does, but what an
ordinary person ought to do under relevant circumstances
3. Standard of Care remains same under all circumstances; reasonableness
a. Risk of harm: greater the risk of harm and greater the amount of that
harm, the greater care required (gasoline has a single standard)
b. Emergency: standard is changed but reasonableness is required for
situations under an emergency situation (minority view)
-other states say a separate emergency instructions is
unnecessary
c. Children: adult activity = adult standard, also judged by age,
experience and intelligence
d. Common Carriers: held by a higher standard
e. Experts: measured by a standard in the trade (doctors held by a
national standard unless G.P.)
f. Custom: not considered a standard of care but failure to comply may
be evidence of negligence
*Palsgraf: To whom is duty owed?
i. Cadozo View—only in the foreseeable Zone of danger (Majority)
Foreseeability—Cardoza in palsgraf
-Criminal actions of 3rd parties are not foreseeable, unless
-Independent unforeseeable intervening act is the only
thing that can break the chain of actual causation
-Rescuer Doctrine; danger invites rescue—had it not been
for the negligent product/action which caused the accident, the
rescuer may not have been injured or the injury of the victim
would not have been increased by the rescuer

ii. Andrews View—General duty of care runs to anyone whose

injury was proximately caused (unbroken chain of causation—
dependent result) by a negligent ∆ (Minority/CA)
4. Special Duty Situations: this “duty of due care” is only applicable where the
∆’s affirmative conduct creates a risk of physical harm—on test, ALWAYS
analyze the existence of duty (V-GOLD);
i. Violation of Statute: ICI + (criminal statute –civil liab)
a) I—intent of legistlature
b) C—Class of persons to be protected
c) I—Type of injury suffered
d) + Evidentiary effect:
(1) Maj: Negligence per se: (except for children in
children’s activities) the statute must be clear of
2 things—1 to prevent a particular type of
injury, 2 to protect a particular class of ∏s
(2) Min: Inference of negligence
(3) CA: Presumption of Negligence
Caveeat: Violation of statute can be used to prove
contributory negligence on the part of the ∏ when the ∏
violates the statute
ii. Guest Statute: a guest must show gross negligence in part of
driver in order to recover in order to prevent insurance
collusion
iii. Omission to Act: if no special duty found, no duty owed
a) no duty to help another in emergency unless:
(1) injured by instrumentality under ∆’s control
(2) Special relationship exists between parties
(3) Statutory duty to act
b) No duty to control acts of 3rd persons unless one had the
actual ability and authority to do so (negligent
supervision/entrustment)
c) No liability for failure to perform a gratuitous promise
(nonfeasance).
(1) Nonfeasance can become MISFEASANCE (a
sufficient basis for tort liability) if ∆-promisor who
enters upon its performance in a manner which is not
reasonable
(2) Modernly, there is a duty to perform a promise if
physical harm or property damage results from
reliance
(3) Detrimental reliance, a contractual concept, can
provide a substitute for consideration and the
promise is no longer gratuitous.
d) Gratuitous undertaking: No duty, however, if undertaken
cannot leave individual in worse situation
(1) Statutory exception for physicians
iv. Landowner-Occupier:
a) Duties owed to persons outside of land:
(1) no duty as to natural conditions—boulders/rivers
(a) Urban area exception
(b) Minority; reasonable care req’d
(2) No duty to artificial conditions except:
 (a) if the artificial condition abuts adjacent
land, a duty exists to inspect and
maintain such structures in a reasonable
safe condition
(b) Excavations adjoining a public road
require a duty to protect highway users from
straying and falling in
b) Duties owed to persons coming onto the land:
(1) Trespasser: -Roland v. Christian (CL—no
duty owed to unknown trespassers),
except if there are evidence which
would make a reasonable person think there
may be a known trespasser; sleeping
bag and broken lock in basement.

(a) undiscovered—No Duty

(b) Discovered—known/anticipated
i. ∆ must use due care in affirmative
acts if he knows that trespasser
is present
ii. if ∆ knows trespassers are
frequently on his land, he must
post warnings of know dangers
(c) Infant: Attractive Nuisance Doctrine:
-Rationale; children are more
important than landowner rights
-Minority: dismiss this doctrine
unless the nuisance has attracted
children to the land
-Elements of:
(1) Foreseeability of trespass
(2) Foreseeability of harm
(3) Risk outweighs utility of
condition
(4) Child unaware of danger—
younger the child, more likely
an attractive nuisance. *child need
not have been attracted onto the
land.
(2) Licensee; Those entering w/ permission for
their own purpose and not for the purpose of
landoccupier—includes social
guests, fire- fighters and police, if not
acting w/i scope of duty.
-Ordinary Care req’d and ∆ must warn and
make safe
-NO Duty to inspect
-No duty to discover licensee but keep in
mind of their possibility of existence
and conduct himself accordingly
 (3) Invitee; Those entering w/ permission
(express/implied) for the purpose related to
the activities or interests of the land occupier.
ie., customers
-Ordinary Care—must inspect, warn and
make safe from foreseeable tortious or
criminal acts of 3rd persons
-CAUTION: change of status; invitee
retains status only on that part of
premises the he was invited to enter.
-Public Invitee—land open for any public
good, even if it’s a public phone in a
private store.
-Private Invitee—for a business purpose
-Postman/Gasman/Water Meter reader
etc… is an invitee at your house;
however, you also give them the
permission to take the shortest possible
route from one drop box to the next, just by
putting a number/address on
your house with a mailbox.
-Recreational land: no liability unless
landowner engages in willful or wanton
conduct
-Courts split on open and obvious dangers
-in 50% of states, duty is determined by
“reasonable person standard.”
v. Duties Owed by Lessors of Land:
a) CL landlord owes no duty to person coming onto land
with the consent of the lessee
Exception:
1) Latent defects known to lessor—he may
be only sued for general negligence if
landlord knew or should have known
2) Railings of balconies are parts of a
house which a land occupier cannot
have authority to fix even if under
his control—thus landowner can be
found liable
b) Duty to warn or repair conditions
dangerous to persons outside the
premises.
c) Same duty as invitees if land leased for admission to
public
d) Areas retained in lessor’s control—duty to safeguard
against crime and repair common areas
-if lessor covenants to repair, must do so w/ due
care (beware of 3rd party beneficiary action)
-Sargent v. Ross: non-liability discarded as a
general duty owed.
BREACH
 -Breach of Duty (lack of due care): the act or omission of act caused an unreasonable
risk of harm. 2-Step Demo needed by ∏:
1. proof of what actually happened
i. direct evidence
ii. circumstantial evidence
-limitations on similar accidents; cannot be bring evidence of
other incidents or lack of, unless under substantially similar
circumstances
2. showing ∆ acted unreasonably under those circumstances
i. Risk—Magnitude of risk; 1. foreseeable severity of damage 2.
foreseeable probability damage will occur
ii. Benefit—Utility of the conduct; as a value over the value of the risk
iii. Risk/Benefit analysis; Judge Learned Hand’s formula:
PL w/o safety precautions – PL w/ safety prec. > B
-must always be measured by the foreseeable likelihood and
gravity of damage
-another alternative to the formula is “reasonable care under the
circumstances”
iv. Res ipsa loquitur (“the thing speaks for itself”); where all 3
elements exist, burden of proof shifts to ∆ to disprove liability;
1) An occurrence that doesn’t normally happen in absence
of someone’s negligence
2) Source of Negligence must be w/i scope of duty owed by
∆ to ∏. Eliminated under restatement 2nd :(Item in
exclusive control of ∆)
3) ∏ nor a 3rd person didn’t contribute ∏’s injury

CAUSE
Actual Cause (“cause in fact”): “but for” had it not been for ∆’s act, the injury would
not have resulted
1. Concurrent: when separate negligent acts concur and ∏ would not have
been injured but for the concurrence—but one act may be non-
tortious act of god.
2. Joint Tortfeasors:several ∆’s jointly engaged in negligent conduct—
each ∆ liable even though one may have inflicted the injury
3. Successive tortfeasors: ∆s acting entirely independent but whose acts
have caused successive impacts to ∏ resulting in a single indivisible
injury to ∏--tortfeasors must attempt to disprove potential
responsibility
-Substantial Factor Test:
1. used if 2 ∆s’ acts would have been sufficient to cause the injury, both
would be a substantial factor
2. Alternative Liability: Summers v. Tice—insufficient facts as to which
of several ∆s caused the injury, both couldn’t but one could have
caused it, the burden of proof shifts to each ∆ to show not
negligent or the ∆s are jointly and severally liable

Proximate Cause (“scope of liability”): “who should bear the risk of loss” w/ a ∆ who
has been negligent and who has actually caused damage to the ∏, is there a policy
reason why the ∆ should be relieved of liability for this damage?”
 1. Direct Causation (domino theory)—act of ∆ caused damages to ∏ w/o an
intervening act.
a) Majority hold ∆ liable only for foreseeable results of his negligent
act
b) Minority hold ∆ liable for all directly caused results
-Exception to Majority Rule: Thin Skulled ∏
Rule/Eggshell/Pre-existing Condition—all courts hold ∆ liable
for full extend to ∏’s injuries.

2. Indirect Causation: the damage is caused by an intervening act; 3rd

person, animal or act of god.
a) Force coming into operation after ∆’s negligence
b) Acts or omissions to act of ∏ should not be analyzed as intervening
forces except in the case of ∏ committing suicide as a result of his
injuries. In this case, the cause of death is the unforeseeable
intervening act of the ∏ himself.

3. Analyze each item of damage separately if some cause is direct and some
are indirect
4. 2 types of intervening causes:
a) Dependent: Normal response to stimulus created by ∆’s act
1) Foreseeable: 4 types:
i. Rescue Forces--∆ liable for aggravated injuries
caused by rescuer to ∏
ii. Reaction Forces: ∆’s negligence causes a
foreseeable reaction
iii. Checking Forces: Negligent treatment of
∏(watch out for malicious treatment and
remember, negligence is foreseeable)
iv. Escape Forces: injuries in attempts to mitigate
harm or escape
b) Independent: Abnormal response to stimulus created by ∆’s
negligence. (An act of God, animal or 3rd person that is not caused by
∆’s negligence, but acts on the stage created by the ∆’s negligence)
1) Foreseeable: The fact that the intervening force was not
reasonably foreseeable does not excuse ∆ from liability as
long as result was foreseeable:
i. Acts of God
ii. Animals
iii. 3rd person’s Negligent Conduct
2) Unforeseeable Superseding cause
i. Unforeseeable criminal acts
ii. Unforeseeable acts of 3rd person; abnormal
rescue
iv. Exception—foreseeable results doctrine
(Gibson v. Garcia)
**Cardozo views liability in the form of duty--∆ argument
**Andrews views it as one of causation--∏ argument
**Must incorporate analysis of Palsgraf from duty in w/ causation analysis.
 DAMAGES
1. General Damages: covers damages deemed inherent in the injury itself;
pain & suffering, disability or disfigurement (past, present and future for all)
2. Special Damages: all economic losses and expenses—medical bills, lost
wages or business profits, cost of hiring household help, etc…
3. Punitive Damages: NO Recovery in Negligent action—only in Intentional
4. Loss of Consortium: Majority require complete loss for a definite period of
time (companionship and intercourse between spouses). Minority extend to
parent/child.
5. Avoidable Consequence Rule: ∏ must act reasonably to mitigate damages--
If a ∏ claims permanent injury, he must do a mitigating surgery—a
reasonable person would do a simple surgery to avert permanent injury.
6. Collateral Source Rule: that a ∆ cannot tell jury that you already
have a insurance which you paid by yourself and has already paid you a
certain amount in order to decrease ∆’s damages owed. Also ∆ cannot
use the aggregate of the discounted medical bills as opposed the whole
regular medical bill amount
Except by statute, it does not apply against public entities or
medical mal practice
7. Multiple ∆ issues:
a) Joint and Several Liability: if 2 ∆s act in concert (injury divisible or
indivisible) or independently, each is liable for ∏’s entire damages
incurred
b) Joint & Several means ∏ may elect to sue both jointly or
alternatively, each tortfeasor may be sued severally and held liable
for all damages caused—one ∆ cannot compel ∏ to join other in as
parties in action.
8. Contributions: each ∆ is liable for the share of the other ∆ but may have an
action to recover against other ∆ the amount paid for him

-Additor vs. remittitor: when judge decides there is no way a jury could
come to such a conclusion and applies an additor (increase of award) or
remittitor (deduction in award)

Misrepresentation can be intentional or negligent.

Joint Tortfeasors (more than one ∆ liable for the same tort)

LIABILITY AND JOINDER OF ∆S:

2. acted in concert fort he purpose of causing the plaintiff’s injury, or
3. acted entirely independently but whose acts were caused a single indivisible
injury to the ∏
i. joint tortfeasors were traditionally jointly and severally liable
ii. indivisible injury—conduct need not be simultaneous

SATISFACTION and RELEASE:

1. unsatisfied judgment against one of several joint tortfeasors does not bar the ∏’s action
against the others.
 a. Satisfaction of a judgment against one tortfeasor extinguishes the cause of action
and bars any suit for greater or additional amount against any of the others
2. Release
a. Early Rule—release of one operated to release all”
i. Rejection of early rule—release does not discharge other tortfeasors, but
reduces claims against them
ii. Avoidance of Early Rule—release with reservation of rights; permitting
a covenant not to sue in lieu of release
1. Other courts have held that a release discharges only those
parties it specifically names

EMOTIONAL DISTRESS (negligent infliction of):

1. Duty owed not to subject others to a foreseeable risk of physical injury (impact/threat)
that might foreseeably result in emotional distress.
a. Split as to impact v. threat; All jurisdictions impose liability for emotional
distress if there is a contemporaneous physical injury (the so-called
“impact rule”). A majority of jurisdictions impose liability for emotional distress
if the ∏ is in the “zone of danger.”
b. Generally, physical manifestation of emotional injuries required
1) Except: Erroneous Telegrams and Mishandled corpses (family
members/pets)
2. Bystander Recovery: jurisdiction split regarding negligent infliction of mental distress:
a. Majority Rule: A person in the zone of danger is not a bystander and can recover
for emotional distress at seeing another person in the zone of danger injured.
b. Minority Rule (CA): Permits bystander to recover for seeing another person
injured if the ∏ meets the “proximity test” of Thing v. La Chusa
1) is closely related to injured person
2) is present at the scene of injury-producing event at the time it occurs
and is aware that it’s causing injuries to victim
3) as a result, suffers emotional distress—a response beyond an interested
person’s reaction
4) Limitation: ∏’s rights may be derivative only. Even where a recovery
by 3rd person (parent) is permitted, the right of action is apparently
derivative; ie., it is dependent on imperiled person’s (child’s) right to
recover.
c. Small Minority of states: Impact rule is still required
d. Michigan Rule (1970): Permits recovery as long as:
1) Distress flows from negligent act
2) Physical manifestations
3) No zone of danger required
e. NY/Pennsylvania Rule: No impact rule—P must be in zone of danger
f. California (Dillon v. Legg—1968): Minority View; facts will indicate family
member involved. Recovery permitted if:
1) Close relationship between parties
2) Sensory and contemporaneous observance: requires some shock and
time important but not controlling
3) Physical proximity
g. Prenatal Issues: Some courts impose a duty toward any fetus that was viable at
the time of injury. Some even allow before fetus viable.
1) Wrongful birth—split of jurisdiction as to recovery
 a) Majority permits recovery of actual losses only, ie., medicals
(argue facts and rationale—no need to note names of cases)

Writing Checklist:
1. Are the facts dealing with direct causation or indirect causation?
2. If direct, determine whether the result was unforeseeable and, if so, whether the Thin
Skulled ∏ is applicable.
3. If indirect, then an intervening act has come into play, is it dependent or
independent?
4. If dependent, then normally liability unless unforeseeable results.
5. If dependent, then were the results foreseeable (argue for liability) or unforeseeable
(argue for no liability but beware of foreseeable results doctrine.
6. **You must incorporate analysis of Palsgraf from duty in with your causation
analysis. Remember, Cardozo views liability in the form of duty (∆ argument) while
Andrews views it as one of causation (∏ argument).

Wrongful Death and Survival

WRONGFUL DEATH
1. Common Law: No cause of action existed
2. Modernly: A new cause of action has been allowed in favor of decedent’s heirs and
dependent parents. Foundation is pecuniary in nature, heirs recover what decedent
would have contributed to their economic well-being less his cost of living expenses.
3. Defenses: Any appropriate defenses that the defendant could have raised against the
decedent may be asserted against the estate.

SURVIVAL
1. Common Law: No cause of action existed
2. Modernly: Most courts allow a cause of action for injuries to the person and property
to survive the death, some allow for pain and suffering (same items of damages are
recoverable as in a normal personal injury case, but are cut off at time of death)
3. If victim dies instantaneously: No action will lie for pain and suffering. However,
property losses are recoverable.

DEFENSES
-∏’s Conduct
1. Contributory Negligence: conduct on the part of the ∏ that falls below the standard to
which he should conform for his own protection, and which is legally contributing cause
in addition to the negligence of the ∆ in bringing about the ∏ harm.
-at CL it acted as a complete bar to recovery by the ∏ for any contributory
negligence.
2. Comparative Negligence: allocates responsibility between the ∏ and ∆ based on relative
negligence
-the reduction of the damages to be recovered by the negligent ∏ in proportion to his
fault
-abrogates implied assumption of risk
3. Last Clear Chance Doctrine: a party who has the last chance to avoid injury to another,
but negligently fails to do so, is liable for damages to the other, even if the other party
was initially negligent.
4. Exculpatory Clause: a contractual provision relieving a party from any liability resulting
from a negligent or wrongful act.
 5. Assumption of Risk: the act or an instance of a prospective ∏’s taking on the risk of loss,
injury or damage. Risk is not assumed when a person has no reasonable alternative but to
encounter a known danger.
a. Express: still valid more of contractual issue rather than a tort as there is a written
agreement
b. Implied
1) Primary assumption of risk: ∆ was not negligent b/c he either owed no duty or
did not breach any duty (common jerking/lurching of a train by operator)
2) Secondary assumption of risk; an affirmative defense
i) Reasonable (pure) assumption—father rushes in a burning building to
save son—unfair doctrine
ii) Unreasonable (qualified) assumption—father rushes to save his
favorite hat—comparative negligence covers this already
Statute of Limitations
-for medical malpractice statute of limitations may be tolled until the ∏ discovers or
should have discovered the injury
-2 years for personal injury
-statute begins to run at the time of injury or when injury discovered.
Immunities: Extinguishes any liability of ∆ based upon his status
1. Families:
a. Spouses:
-Common Law: absolute immunity between spouses
-Modernly: most all jurisdictions have rejected interspousal immunity; some in
intentional torts only but others have abolished all intentional and
negligent torts
-Immunity not applicable under Respondeat Superior where a spouse injures his
spouse while under the scope of employment.
-spouses may sue for property damage but not for personal injury.
b. Parent/Child:
-Common Law—no immunity
-Early American History—immunity for personal torts but not property torts
-MODERNLY: restricts or rejects parent/child immunity to negligence but
allowed to sue for willful torts
-some states have abolished immunity only if liability insurance exists so there is
“no threat to family harmony.”
-child not permitted to sue mother for injuries caused by car accident during
child’s minority
2. Charities: nongovernmental charitable institutions are liable for their own negligence and the
negligence of their employees—this as an old rule to promote charities but today it’s
a huge business with each having insurances and assets.
3. Employer Immunity
4. State and Local Governments:
a. Common Law: state (everything public) was immune from tort liability, however, there
was no immunity for “proprietary or private functions” (gas, water, electric, pub.
Halls)
b. Modernly—many have abolished sovereign immunity; governmental entities are not
immune from tort liability (school dist.)
-Federal Torts Claim Act abolishes tort immunity for negligence plus most
intentional torts by federal officers or investigators, HOWEVER,
immunity retained for other intentional or strict liability and
“discretionary” acts by government employees; park ranger releasing a ∏ who
gets hit by a car is discretionary
-Feres Doctrine; part of FTCA judicially created to deny ∏’s in armed forces
from recovery from government during or incident to service
-a city is immune from liability for the negligent failure to provide police
protection; sovereign immunity
-where a municipality has assumed the duty to protect an individual, they may be
found liable
5. The United States: Executive branch, judges and legislature in high-ranking positions have
complete immunity
-Lower ranking positions; immune only in claims of negligence BUT no
immunity for ministerial functions
-Discretionary functions; immunity if acting in good faith
6. Public Officers: discretionary conduct of government agents acting within the scope of their
authority are protected by the discretionary function exception to the Federal Torts
Claims Act.

VICARIOUS LIABILITY
1. Respondeat Superior (always fact-based, not a legal issue); public policy demands E
should bear the risk of loss and E is liable for e’s tortious acts where the E caused dangers
at or related to work (fumes at work), even if e was mere “going to and coming from
work,” and exception to RS
-E may also be liable for e’s mere detour as opposed to frolic, by tending to E’s work

-master who borrows another’s servant will be vicariously liable for the torts of that
servant
2. Independent Contractors: E is not liable for the torts of his IC unless;
a. Inherently dangerous activities (beware of strict liability)
b. Non-delegable duties (maintain roads in good repair, maintain automobile,
maintain public premises)
c. R2 414: “One who entrusts work to an IC, but who retains the control of any part
of the work, is subject to liability for physical harm to others for whose safety the
E owes a duty to exercise reasonable care.”
d. Collateral Negligence Rule: E is only responsible for the risks which are inherent
in the work, not for the collateral negligence of the IC.
3. Enterprise Liability/Joint Enterprise (always on test): a ∆ is not vicariously liable for the
negligence of another under a theory of joint venture unless the joint venture was
motivated by profit.
a. Four elements of Enterprise Liability
1) an agreement, express or implied, among the members of the group
2) a common purpose to be carried out by the group
3) a community of pecuniary interest in that purpose, among members,
and
4) an equal right to a voice in the direction of the enterprise, which gives
an equal right of control
4. Bailments: Generally involve no vicarious liability, unless lack of due care shown on the
part of bailor.
-mostly in car situations; rental car agency is liable for damages caused to another with
their rental car by an individual who had not rented that vehicle.
1) Negligent entrustment may still apply
 5. Imputed Contributory Negligence: contributory negligence may not be imputed to a
passenger riding in her own automobile without the finding of either a master-servant
relationship or a finding of joint enterprise.
6. Parent/Child: A parent is not vicariously liable for the tortious conduct of the child at
common law. However, most states, by statute, make parents liable for the willful and
intentional torts of their minor children up to a certain dollar amount
CAVEAT: If the related party is not vicariously liable, he may be liable for his own
negligence (e.g., negligent selection of IC, negligent entrustment of automobile, negligent
supervision of child)

Strict Liability: liability without fault—liability that does not depend on the actual negligence or
intent to harm, but that is based on the breach of an absolute duty to make something safe.
1. Animals: the owner of an animal known to the owner to be vicious is strictly liable for
damage caused by the animal—contributory negligence is not a defense to strict liability.
-ultra hazardous only on things like teeth, size, claws, poison etc…their fur, feces don’t
make them ultra hazardous! What makes them ultra hazardous?
a) Domestic Animals—one is strictly liable for injuries caused by a domestic
animal (dogs/cats etc…) unless the ∆ has “scienter” or knowledge of
the dangerous propensities of the animal, however after one bit, the
owner is presumed to have knowledge of the dangerous propensities
(one-bite rule)
1) The possessor is liable only for the injuries attributable to the animal’s
known dangerous propensity
2) Compare – normally dangerous domestic animals. The possessor of a
domestic animal belonging to a class of animals that normally has
dangerous propensities (eg., bull) is not strictly liable for
injuries caused by that animal’s normal dangerous propensity.
b) Wild Animals—a possessor is subject to liability to another for harm done by
the animal to the other, his person, land or chattels, although the
possessor has exercised the utmost care to confine the animal, or otherwise
prevent it from doing harm (non-delegable duty)
i) liability limited to harm that results from a dangerous propensity that is
characteristic of wild animals of that class, or of which the possessor
knows or has reason to know
ii) strict liability does NOT apply where the animals is under a public
duty (zoo) or under transport by a common carrier
c) Trespassing Livestock – Strict liability for trespass/damages
d) Injuries to 3rd parties
i) Licensees & invitees injured by wild or abnormally dangerous
domestic animals may recover in strict liability
ii) Trespassers may not generally recover in strict liability for such
animal-inflicted injuries. They may, however, recover in
negligence where the landowner knows of their presence and
fails to post warnings
(1) Strict liability recovery does apply even to trespassers fro
injuries inflicted by vicious dogs
2. Ultrahazardous/Abnormal Dangerous Activities: even w/o fault, ∆s must pay for damages
caused by abnormally dangerous activities;
 a. Ryland v. Fletcher held that a person who brings something onto his land that
involves a non-natural use of the land and is likely to cause substantial damage if
it escapes will be strictly liable if it in fact escapes and causes harm
b. Ultra-hazardous (1st Restatement) involves a risk of serious harm to the persons
or property of others, which cannot be eliminated even by due care, which is not
a matter of common usage (utility v. risk) (blasting, drilling fumigating)
c. One who maintains an abnormally dangerous condition or activity (2nd
Restatement) on his or her premises , or engages in an activity that involves a
high risk of harm to the persons or property of others may be liable for the harm
it causes even though reasonable care to prevent such harm have been exercised.
(crop dusting, transporting a large quantity of highly flammable chemicals in
one’s auto)
1) Factors to consider:
a) the risk of harm is great (no ultra hazard if dynamite doesn’t
explode)
b) the harm which could materialize is great
c) any damage could not have been prevented with the exercise of
due care
d) the activity was not one of common usage
e) the activity was inappropriate to the place in which it took place,
and
f) the value to the community of the activity is not great compared
to the unavoidable risk.
d. A strict liability action requires a prima facie showing that ∆ breached an
absolute duty to make safe
e. Duty owed to foreseeable ∏’s and to the results from the kind of danger to be
anticipated. (Mink Case)
1) Strict liability is limited to the kind of harm, the possibility of which
makes the activity abnormally dangerous
f. Actual cause & proximate cause should be argued. Some courts cut off
proximate cause when the ∏’s own act caused the strict liability harm
g. Damages – Harm to ∏’s persons or property
h. Assumption of the risk may prevent recovery/comparative negligence
3. Limitations on Strict Liability: discharging firearms in a range or the manufacturing and
shipping (as opposed to carrying) of toxic chemicals is not abnormally dangerous.
-not strictly liable for damage which is not within the scope of danger created by
that activity

PRODUCTS LIABILITY; Privity no longer required in express or implied warranties!

1. Development of Theories of Recovery;

∏ will bring a cause of action on the basis of products liability. These are 4 possible tort
theories ∏ can assert. However, there will be no recovery unless the product is
DEFECTIVE IN DESIGN (product designed as intended but creates an unreasonable
danger to consumer {beware of state of the art as a defense}), MANUFACTURE
(product is not made as the manufacturer intended and the product is different from the
rest of the products {look to assembly, raw materials, or component parts}), or
WARNING (dangers not apparent to consumer)
a. Intentional: In order for ∏ to recover on a theory of intent (battery), ∏ will have
to establish that the manufacturer/distributor/supplier knew the product would
 cause harm. Because intent to cause harm is difficult to establish, ∏ should
proceed under a negligence theory.
b. Negligence: (emphasis is on the conduct of manufacturer) ∏ will bring a cause of
action against the manufacturer, unless defect was known to the retailer who is
under no affirmative duty to inspect. (If he thinks there is a defect, he must warn
and subsequent failure to act cut off the manufacturer’s liability)
1) Duty: Originally, duty of due care extended only to those in Privity of
K (Winterbottom v. Wright) unless the product was inherently
dangerous or for intimate body use (Thomas v. Winchester). Later,
(McPherson v. Buick—liable for all foreseeable end-users),
discarded the Privity requirement and maintained where the average
reasonable man could foresee that the product would create a risk of
harm, then the supplier was under a duty to all foreseeable users. The
use which includes a duty to inspect, discover, and correct defects,
which a reasonable inspection would reveal. This also includes a duty
to warn if the product is unavoidably unsafe (if components involved,
then the manufacturer is responsible but can get indemnification)

2) Breach: ∏ must establish that there was a defective product in that it

failed to meet the ordinary commercial expectations of the average
reasonable consumer (did the conduct fall below the standard of care of
the reasonable person under the same or similar circumstances, special
skill, training, knowledge). An alternative test to the consumer
expectation test is know as the cost/benefit test: Would the benefit in
the great safety outweigh the cost of design changes that would lessen
the hazard to the consumer. There are 3 types of breaches:
(a) defect in manufacturing
(b) defect in design
(c) defect in warning
-the majority of courts permit the use of Res Ipsa Loquitor to
establish breach (accident is the type that does not happen in the
absence of negligence, negligence must be within scope of ∆’s duty
to ∏, ∏ did not contribute to his own injury)

3) Causation: ∏ will have to establish that the ∆ was the actual cause and
the proximate cause of the injuries. If abnormal use was involved or if
dealer actually knew of danger and fails to warn, the manufacturer will
be relieved of liability. An obvious hazard will not relieve the
manufacturer of liability if the cost of eliminating the hazard is
outweighed by the benefits obtained. In this case, the consumer
expectation test is not used.

4) Damages: Limited to personal and property. Punitive damages

available if ∆’s conduct is reckless, no recovery for pure economic
losses is permitted.

5) Defenses: Contributory negligence, comparative negligence and

assumption of risk
c. Warranty
 1) Express Warranty: (must be given on exam) When a commercial
supplier of chattels makes a representation of fact innocent or not, on
which ∏ has relied to his damage. Modernly, Privity has been
eliminated. The Restatement 402B limits actions as to public
representations of material fact while U.C.C. 2-213 emphasizes seller
to buyer representations. Damages include personal, property, and pure
economic loss. ∆ may assert assumption of risk and misuse of product.
Seller may assert puffing as a defense.
(a) Restatement 402B applies to any commercial seller and liability
extends to anyone relying on the representation
(1) Defenses: assumption of risk and misuse of product
(b) U.C.C. 2-313 applies to any seller. Look for a warranty that
goes to the basis of the bargain
(1) Defenses: Assumption of risk, notice, and disclaimer to
explain that warranty was not the cause of injury
2) Implied Warranty: Implied in law from seller to buyer in which a K
must exist between each party. As a general rule, Privity is required
as against the manufacturer but not the retailer unless conduct is
inherently dangerous or food. (??? Gilberts) Privity U.C.C.
alternatives:
i) Buyer/family members/guests – limited to
personal injuries
ii) Any natural person – limited to personal
injuries
iii) Any person – Modernly, the manufacturer
is liable even to a bystander if within the
foreseeable scope of use.
(a) Implied warranty of merchantability: a merchant selling
goods warrants that they are of average and fair quality, ie.,
fit for normal use. Look to similar/like products in market,
fit for use intended, with emphasis on safety.
(b) Implied warranty of fitness for intended use: If seller knows
of buyer’s intended use, and buyer acting as an average
reasonable person, relies upon seller’s “special knowledge
and skills,” then liability
*Causation same as under negligence, while damages are limited
to personal and property. ∆ may assert assumption of risk,
disclaimers, misuse of product, and U.C.C. defense of
timely notice

d. Strict Liability in Tort: Courts have held a manufacturer/distributor/supplier

liable by operation of the law. Thus, if a defective product is placed in the stream
of commerce the manufacturer will be held strictly liable in tort to all consumer-
users for their injuries. (Greenman v. Yuba Power)—memorize this paragraph
1) ∏ must establish that the product is defective in design, manufacturing,
or warning.
(a) Restatement 2nd 402a: requires that in order for a product to be
defective it must be sold by commercial seller and be
unreasonably dangerous in its normal intended use (danger not
 contemplated by ordinary user and manufacturer must have been
able to foresee)
-Consumer expectation test/cost/benefit analysis test
(b) CA: Merely requires that the defective product causes harm in its
normal use (Foreseeability not at issue which distinguishes strict
liability from negligence)
(1) Look to the expectations of the reasonable consumer and
whether the product fails to perform as safely as an
ordinary consumer would expect when used in its
intended manner
(2) CA shifts to the manufacturer the burden of proving that the
benefits of the design outweigh the risk of danger
inherent in that design.
2) The product is defective if defect is in existence at the time it left the
hands of the manufacturer and then placed in the stream of commerce.
3) Originally, liability extended only to the ultimate consumer. However,
(Elmore v. American Motors) extended it to the bystander as his
protection was deemed more than that of the consumer. Vandermark
v. Ford Motor CO. extended strict liability to the retailer and or any
middleman (any party who caused the product to enter the stream of
commerce)
4) ∏ must establish that the defect was the actual/proximate cause of his
injuries.
5) Damages are allowed for personal, property, and economic (minority).
No recovery for pure economic losses.
6) ∆ may assert as defenses assumption of risk and misuse of product
(some states, including CA allow comparative negligence but not
contributory negligence)
7) Indemnification will be allowed where appropriate
*Beware of Endorser (Negligent Misrepresentation/Negligence)
**NOTE: only suggested approach but FACTS must be used extensively.

2. Product Defects
a. Manufacturing Defect
b. Design Defect
c. Warning Defect

3. Proof
4. Defenses
a. ∏’s conduct
b. Preemption and Other Government Actions

5. ∆s Other than Principal Manufacturers/Harm other than Personal Injury

a. Other Suppliers of Chattel
b. Services
c. Harm Other Than Personal Injury

6. Legislation and Products Liability

NUISSANCE: An act by ∆ that constitutes a nontrespassory invasion of ∏’s interest in the use
and enjoyment of his land, causing ∏ substantial and unreasonable harm.
 1. Private nuisance: Unreasonable interference with possessory interest of an individual in
the use or enjoyment of his land
2. Public nuisance: Unreasonable interference with a right common to the general public in
order to sue. Attorney general sues for public nuisance
3. Special Features:
a. Can be intentional, negligent, or strict liability
1) Watch of issues of trespass and strict liability
2) Remember, when the intrusion is nonphysical (smoke, noise, vibration)
the court will treat it as a nuisance
b. Look for a substantial invasion
c. ∏ must be in actual possession or must have the right to immediate possession
d. Utility v. Risk
e. Coming to the nuisance is not a defense but zoning may be a defense
f. R2 201 & 203: “An entry on land in the possession of another by a possessor of
neighboring land is privileged if the entry is made
1) For the purpose of abating a structure or another condition on the land,
which constitutes a private/public nuisance, and
2) At a reasonable time and in a reasonable manner, and
3) After the possessor upon demand has failed to abate the nuisance, or
without such demand if the actor reasonably believes it to be
impractical or usless”
g. Damages
1) Money damages and/or injunction to abate – beware of equitable defenses
4. Defenses:

DEFAMATION
A. Prima Facie Case: ∏ must prove that the matter was false and defamatory, published
intentionally or negligently by ∆ to a 3rd person, that the 3rd person understood the defamatory
imputations applied to ∏ and ∏ suffered damage as a result of the defamation
1. Special Features:
a. Defamatory: matter must lower ∏’s esteem in the community (Rest 2nd)
1) Fact v. opinion (reasonable person test)
a) MILKOVICH v. LORAIN JOURNAL CO. (1990): The U.S. Supreme
Court held that an opinion that contains false factual assertions is not
entitled to constitutional protection. While the privilege of
fair comment is designed to protect opinions bearing on
public concern, it does not protect any type of statement ,
opinion or otherwise, which is untruthful and states or implies a
factual basis
b. Published intentionally/negligently to 3rd person
1) Facts will normally support element
c. Understood:
1) Defamation per quod: Statements which are only capable of being understood
as defamatory by the use of extrinsic facts
a) Inducement: Extrinsic facts necessary to establish and understand
defamatory meaning
b) Innuendo: Meaning which results from the inducement
c) Colloquium: Defamatory statement that makes no reference to ∏. ∏
has burden to establish that the person to whom the
 defamation was published reasonably interpreted it as
referring to ∏
2) Group defamation: Size of group determines cause of action
3) ∏ must be a living human being
d. Damages:
1) Slander: (ear) Special pecuniary damages actually suffered need be proven
unless per se (CLUB). Once specials proven, general damages are
recoverable
a) Special damages means pecuniary losses that flow directly from the
defamation
2) Libel: (eye) If statement is libel on its face (libel per se) special not required
and general damages are presumed
a) Libel per quod-split of jurisdiction
3) Per se: (proof of specials not required and generals presumed)
CLUB
Crime
Loathsome Disease
Unchastity
Buinsess, trade or profession (ie., bad cops or judges)

2. Republisher Liability: Anyone who takes part in the publication may be liable. (beware
of Respondeat Superior)
a. Exception
1) Dissemination unless reason to know of defamation exists
3. Retraction: May limit amount of general damages recoverable
a. No effect on specials

4. Defenses:
a. Consent
b. Truth*
c. Absolute privileges:
1) Judicial proceeding
2) Legislative proceedings
3) Executive – official statements of government officials
4) Husband/Wife
5) Broadcasters (equal time doctrine)
d. Qualified Privileges*: Can be lost if statement was irrelevant, made with malice,
excessive publication, bad faith belief in statement
1) Reports of public proceedings
2) Fair comment
3) Interest of publisher: protection of ∆’s own legitimate interests
4) Interest of others: (warn employer)
5) Common interest: (business dealings with a common pecuniary
interest)
6) Communications to one who may act in public interest: (prevention fo
a crime)
e. Constitutional Privileges*:
1) NEW YORK TIMES: Public official. Actual Malice-knowledge of
its falsity or reckless disregard for its truth or falsity
2) WALKER AND BUTTS: Public Figures
 3) HUSTLER MAGAZINE V. FALWELL: Public figure must prove
defamation “actual malice” in order to recover damages fro
intentional infliction of emotional distress
4) GERTZ v. WELCH: Private individual involving matters of public
concern – negligence will suffice. A punitive damage
allegation requires proof of actual malice.
a) DUNN & BRADSTREET v. GREENMOSS BUILDERS:
When the defamatory statement involves a matter of
purely private concern, GERTZ does not apply, and
∏ may therefore recover presumed and punitive
damages according to state law. The courts will look to
the content, form, and context of a publication in order
to determine whether the matter is a public or private
concern.
5) PHILADELPHIA NEWSPAPERS, INC v. HEPPS (1986): Private
∏ in matter of public concern must show statements were
false to collect damages.
6) BARNICKI v. VOPPER (2001): The court held that the 1st
Amendment precludes holding the media civilly liable for
broadcasting a tape of a conversation that was
illegally intercepted and recorded, so long as the media played no role
in the illegal taping an so long as the tape concerned a matter
of public importance.
7) Four possible law suits:
a) Public figure ∏ v. media ∆ - NY Times;
b) Public Figure ∏ v. non-media ∆ - NY Times;
c) Private ∏ v. media ∆ (public concern) – Negligence actual
damages/non-media ∆ (public concern) – Malice
presumed damages – GERTZ
8) Key issues:
a) Is the ∏ a public figure or private person?
b) Is the subject matter a public or private concern?
INVASION OF PRIVACY
A. Gist of this cause of action is the interference with an individual’s “Right to be let alone.”
1. Special features
a. Appropriation of ∏’s name/likeliness:
1) Unjust enrichment through the theft of goodwill – look to
unauthorized use
2) Appropriation is for ∆’s pecuniary benefit
3) Look for a ∆ promoting product/services

b. Intrusion upon seclusion:

1) Unreasonable invasion of another’s reasonable expectation of privacy
a) Beware of public places
2) May include intrusion onto ∏’s property (bug/trespass) and
nonphysical intrusions (telephone calls/binoculars)

c. Public disclosure of private facts:

1) Highly offensive to a reasonable person and is not of legitimate
concern to the public
 2) Disclosure must involve private facts (facts not a matter of public
record)
3) Publicity essential – Communication either to the public at large or to
enough individuals that is likely to reach the general public
4) Considered an extension of defamation without the defense of truth or
special damages. Defamation defenses of absolute and
qualified privileges are applicable.
5) Newsworthy is a defense

d. False light in the public eye:

1) Unauthorized use of ∏’s name or likeliness attributing to him/her
ideas which are false
2) The actor had knowledge of or acted in reckless disregard as to the
falsity to the publicized matter and the false light in which the
other would be placed
3) False light must be highly offensive to a reasonable person
4) Truth is a valid defense. Defamation defenses of absolute and
qualified privileges are applicable
5) TIME v. Hill establishes where matter is published in the public
interest, recovery for publicity placing ∏ in a false light is
only actionable upon proof of malice. Thus, the NEW
YORK TIMES V. SULLIVAN standard for malice was held to
apply to the tort of invasion of privacy.
e. Damages: No requirement of specials. Injunctions are generally available in
cases of intrusion upon seclusion
f. Defenses:
1) Consent
2) Truth is no defense
a) Exception; False light
3) Newsworthiness (press can report on matters of legitimate public
interest and concern)
a) Public figures: enter vortex of controversy but should not
exceed the realm of decency
b) TIME v. HILL: Actual malice – private ∏ v. media ∆ as to a
matter of public interest
c) DUNN & BRADSTREET v. GREENMOSS BUILDERS:
There is no constitutional privilege if matters are of
private concern (defamation case)
*BEWARE of emotional distress

MISUSE OF LEGAL PROCEDURE

MISREPRESENTATION
1. Intention (fraud/deceit): A misrepresentation of an existing material fact made
knowingly, with the intent to induce ∏’s reliance, causing ∏ to justifiably rely to his damage
Special Features
Active concealment is a form of misrepresentation
Scienter is essential for deceit
3) Liability extends to those whom ∆
intended to induce to rely (including all ∏s whom would reasonably
and foreseeably rely) upon
Damages:
(a) Benefit of a bargain: Difference between actual value received and
what would have been received had the representation been true
(majority)
(b) Out-of-Pocket: Difference between what ∏ received and what he
parted with plus reliance damages
(c) Beware of punitive damages
CAVEAT: Beware of K/Remedies crossover
2. Negligent: A false material representation of a
material fact which is made with a lack of due care intended to induce reliance to which
proximately cause ∏’s damage
Special Features:
1) Look for a special business or
personal relationship where it’s one’s business to supply information
for others
a) A contractual relationship can create the duty. If that duty exists,
then the ∆ must act as a reasonable person in making the
representation. If a reasonable person, knowing what ∆ knows,
would not believe the truth of the representation, then ∆ has breached
his duty to ∏ in making the representation
2) Liability extends to those whom ∆
knows the information will be communicated, ie., ∆ must have
contemplated ∏’s reliance
Damages: Out of pocket measure

BUSINESS TORTS
1. Injurious Falsehood (disparagement): The publication of matter derogatory to the ∏’s
title to his property, its quality, business, or personal affairs, calculated to prevent others
from dealing with ∏
a. Special Features
1) ∏ must plead special damages (loss of customers)
2) Matter must be false
3) Competitive privilege allowed
4) Noncompetitive situations require ∆’s honest belief of statement – see
defamation defenses
5) Beware of Defamation

2. Interference with K: words or actions by ∆ intentionally undertakes to interfere with an

existing K of ∏ causing his damage
a. Special Features:
1) ∆ not a party: No action for interference with K lies against a party to that K
a) However, a corporate officer acting for his own benefit may be liable
for inducing the corporation to breach its K with ∏
b) A few states permit one party to a K to sue the other party in tort for a
breach motivated by some interest other than the K
relationship such as to help the ∆ acquire a competitive benefit
over the ∏ in some other matter
c) The modern and majority view is that a tort action lies for discharging
the ∏ for an improper reason even though the hiring was at
will
 2) ∆ may be privileged as long as interference is for the proper purpose (honest
advice requested)
3) Beware of K crossover
3. Interference with prospective advantage:
a. Special Features:
1) Interference with an expectancy only
2) The Interference act consists of either inducing a 3rd not to enter into a
prospective relationship with the ∏ or preventing the ∏ from
acquiring the prospective relationship (restatement 2nd §766B)
3) As with interference with K, the ∆ need not be a party to the prospective
economic relationship. An employee, acting to undermine the
prospective relationship between his E and the ∏, may be liable.
4) Modernly, recovery permitted for non-commercial purpose, e.g., prospective
gift
5) Negligent interference recognized provided ∆ owes duty to ∏
6) Beware of K crossover

IMPROPER LITIGATION (beware of professional responsibility)

1. Malicious prosecution: Initiation of criminal proceedings against ∏ that terminated in his
favor and for which there was no probably cause and an improper purpose all to ∏’s damage
a. Damages:
1) The harm to his reputation/litigation cost/possible punitive damages
2) The emotional distress resulting from the brining of the proceedings
2. Wrongful institution of civil proceedings: one who takes an active part in the initiation,
continuation or procurement of civil proceedings against another is subject to liability to the other
for wrongful civil proceedings if
a. He acts without probably cause, and primarily for a purpose other than that of securing
the proper adjudication of the claim in which the proceedings are based, and
b. except when they are ex parte, the proceedings have terminated in favor of the person
against whom they are brought
c. Damages – see malicious prosecution above
3. Abuse of process: Use of criminal or civil process for purpose for which it was not intended,
ie., must be intentional misuse for an ulterior purpose calculated to damage ∏

2. Family Relations

TORTS IN THE AGE OF STATUTES

1. Implied Rights of Action and Statutory Duties
2. Express Rights of Action: Civil RICO
3. The Determination of Tort Law

COMPENSATION SYSTEMS AS SUBSTIUTES FOR TORT LAW

1. Employment Injuries
2. Automobile Accident Injuries
3. Other No-Fault Compensation Systems
4. The Future
Know for test:
4. Sindell v. Abbot labs; as between an innocent ∏ and negligent ∆s (more
than one), the latter should bear the cost of injury to the ∏ even if ∏
can’t prove which ∆ was liable
i. Under CA view, if the ∆s in the action represent a substantial
share of the market for the product, they will be liable for a
percentage of the ∏’s injuries equal to their market share
5. Summer v. Tice: ∏ cannot show whether ∆1 or ∆2’s negligence was the
actual cause of P’s injuries, the burden of going forward with the
evidence shifts to each ∆ to show that his negligence was not the actual
cause.
8. Retraxit (anti-retraxit statute in CA); latin, “he has withdrawn.” A ∏
voluntarily withdrawing with prejudice (forfeits rights of action)
9. CA is pure comparative negligence
10-11-10:
-The citadel of privity of contract no longer applies: MacPherson v. Buick
Motor Co. (know by name)—manufacturers owe a duty to remote
purchasers to inspect products which are reasonably certain to cause injury.
-contract damages are only those foreseeable but in torts damages go as far
as damages goes in an unbroken chain of causation
11-18-10
Privilege does not exist to future conversation; priest, Dr. etc…
Under Negligence, break down the duty part into the “who” and “standard
of care”
12-8-10
-Licensee (someone on premises with permission); sales man is a trespasser.
When you open the door and tell them to leave, they become a known
trespassers and have to warn them of known dangers.
-Invitees; business purpose in common with land occupier or landowner. If
you decide to buy from the salesman, they become invitee.
-Land occupier; has duty to inspect and then warn of and make safe
dangerous defect (CL standard)
-Reasonable land occupier…look up (modernly)
-Discuss both CL and Modern
-Honestly = Subjectively
-Reasonably = Objectively

1/20/11

Cases and Notes:

Butterfield v. Forrester: an injured ∏ may not recover damages against a negligent ∆ if

the ∏ did not exercise reasonable care to avoid the injury.

Davies v. Mann: (doctrine of last clear chance) A negligent ∆, claiming contributory

negligence on the part of the ∏, may not escape liability if the ∆ had the last chance to
prevent the injury had he not been so negligent.
McIntyre v. Balentine: The doctrine of contributory negligence should be replaced by a
system of comparative fault to allow the ∏, whose negligence is less than the ∆, to
recover damages which are reduced in proportion to the ∏’s percentage of fault.

Seigneur v. National Fitness Inst. Inc.,: An exculpatory clause in a health club

membership agreement is valid and enforceable.

Rush v. Commercial Realty Co.: Risk is not assumed when a person has no reasonable
alternative but to encounter a known danger.

Blackburn v. Dorta: The doctrine of comparative negligence abrogates implied

assumption of risk.

Teeters v. Currey: State of Limitations may be tolled until the ∏ discovers that she has
been involved/injured.

Freehe v. Freehe: Spouses are not immune from liability in personal injury cases.

Renko v. McLean: Child not permitted to sue mother for injuries caused by car accident.

Abernathy v. Sisters of St. Mary’s: Nongovernmental charitable institutions are liable for
their own negligence and the negligence of their employees.

1/27/11
Getting all the issues is clearly passing. Doing it well is what makes the higher points.
Issues:
Leased land—land occupier
Bullet piercing hat—battery (no defense to intentional tort). For tort intent does not
matter!
Second shot—assault
Camera breaking from swinging door—trespass to chattel and conversion may be
(punitive comes with intentional torts)
**watch intentional torts—hardly no defense to it.

**Learn to differentiate between criminal law and tort in intents and actual ability.

For multi-state: issue spot as you read and if you think a defense, not it in your
mind. Find the answer which your issues relate to… Never change your mind from
your first choice in multi-state.

Start doing essays now. Follow the call exactly, don’t separate lawsuits if the call says to
discuss both.

2/3/11
Joint venture/enterprise liability; carpooling etc…
Popejoy v. Steinle: family farm purpose or kid’s purpose
Malchose v. Kalfell: if parents wrote kid off on taxes and the car was in parent’s name,
there is an equal right to control—joint enterprise

Smalich v. Westfall: no equal right to control, thus no joint venture and vicarious liability
cannot be imputed.

Strict Liability: by its nature it’s dangerous or likely to escape from your land that you
brought it to (where even a duty cannot control it)…inanimate objects don’t count since
they are harmless without an intervention in inherently themselves.

Rylands v. Fletcher:

Miller v. Civil Constructors, Inc.:

Indiana Harbor Belt v. American Cyanamid Co.:

Limitations on Strict liability

Foster v. Preston Mill Co.:

Golden v. Amory: unforeseeable act of god cuts the chain of strict liability/causation

Sandy v. Bushey: contributory negligence is not a defense to strict liability, unless it’s
100% stupidity. Playing the dynamite game would amount to assumption of the risk

2/10/11
Cases that we MUST know and put on flashcards:
Palsgraf
Summer v. Tyce
Roland v. Christian
MacPherson v. Buick Motors

Products Liability

MacPherson v. Buick Motor Co.: liability based on Foreseeability of Harm—today, if a

reasonable person would foresee a risk of harm if the product is not carefully made or
supplied, the manufacturer or supplier owes a duty of due care to all foreseeable users
(end-users)

Privity no longer required in express or implied warranties!

To prove manufacturing defect, the test is risk v. utility (importance to society).

Flashcard--Design defect; risk vs. utility. Where risk outweighs utility.
Contributory negligence arising to assumption of the risk—a statement to use…

2/17/11

Rix v. General Motors Corp.: sellers are strictly liable for manufacturing defects that
reach the consumer without substantial change in the defective condition.

O’Brien v. Muskin: A ∏ must make a prima facie showing of a defective product, based
on the risk-utility analysis.

Anderson v. Owens-Corning Fiberglass Corp.:

Evidence that a particular risk was neither known nor knowable by the application of
scientific knowledge available at the time of manufacture and/or distribution provides a
defense to warnings defect cases.

Friedman v. General Motors Corp.:

Circumstantial evidence of defects may be used to make a prima facie case.
Pg 797 notes!--read

Daly v. General Motors Corp.:

Comparative fault principles can be applied to strict products liability actions, if it
amounts to assumption of the risk.

*Ford Motor v. Mathews: Manufacturers are liable for reasonable, foreseeable, albeit
abnormal (misuse), uses of their products.

Medtronic v. Lohr: The Medical Device Amendments of 1976, a federal statue, does not
preempt a state common-law negligence action against the manufacturer of an allegedly
defective medical device.

Peterson v. Lou Bachrodt Chevrolet Co.: A remote retailer (seller of used cars), who
outside of the original producing and marketing chain, is not subject to strict products
liability.

Products liability—if you put a newly manufactured product in stream of commerce

for profit that has a defect in it when you put it in the stream of commerce, and that
defect has to actually and proximately caused a damage to a foreseeable end-user.

On the essay: Start w/ neg. then mcpherson v. buick, warranty (exp (almost never
on test) or implied with fitness for those intended (always tested)), strict liability—
design (most likely on test—risk v. utility) or manufacturing defect(less likely on
test).
Whyeth v. Levine: Federal preemptions as to warnings are not applicable to
pharmaceuticals—warning is the floor not the ceiling; a min, not a max and state law
applies to pharmaceuticals.

Hector v. Cedars-Sinai Medical Center: Providers of medical

2/24/11

(new Case from Supreme Court); National Childhood vaccine act of 1986 preempts all
state law, thus no liability for products liability. Not applicable to pharmaceuticals but it
does to vaccines.

Hector v. Cedars-Sinai Medical Center: Providers of medical

MUST Discuss the following on EVERY products liability case:

1. Neg.
2. Warranty
3. Strict Liability

Nuisance (is not a tort) is a theory or type of damage; interference with the peaceful,
quiet enjoyment of a land of another, without consent or legal justification.
-intentional, negligent or strict liability

Philadelphia Electric Co. v. Hercules, Inc.: Actions for private nuisance can typically be
brought only by neighboring landowners, and actions for public nuisance can be brought
by members of the public whose general rights have been interfered with.

Morgan v. High Penn Oil: intentional interferences which cause nuisance are actionable
even if the party causing the nuisance is not negligent.

Public v. Private Nuisance; Public nuisances require a public attorney to bring suit for
the public.

Carpenter v. The Double R Cattle Company, Inc.: the doctrine of continued nuisance
allows the nuisance to continue, but aggrieved landowners need not be compensated for
their injuries, if the utility of nuisance is great.

Winget v. Winn-Dixie Stores, Inc.: even lawfully zoned businesses may constitute a
nuisance if they are operated so as to unreasonably interfere with the health or comfort of
neighbors.

Boomer v. Atlantic Cement Co., Inc.: A continued nuisance may be remedied by the
payment of permanent damages, allowing the interfering activity to continue.
Spur Industries Inc. v. Del E. Webb Development Co.: A party “who comes to a
nuisance” may be entitled to an injunction may be obligated to pay damages to the ∆.

3/17/11
DEFAMATION: a false statement communicated to a 3rd party which ruins the
reputation of them
-Libel—have to prove damages
Modernly—libel us any defamation in permanent form
-Slander—damage is presumed

FIRST AMENDEMNT AND FREEDOM OF SPEECH/PRESS: must show actual

malice
-Actual Malice: if the publisher has serious doubts it is reckless disregard of the
truths.
-Negligence—knew or should have known for private party

-opinion is absolutely privileged, facts are not

Qualified privilege - can be lost by not telling the truth or making it look like it was
otherwise (need just the facts, no opinions)

PRODUCTS LIABILITY (REVIEW): what would have a reasonable manufacturer have

done?
1. Negligence
Duty(Mac Pherson v. Buick Motors)
Breach -
Causation – actual & proximate
Damages – special and general
Defenses: Contrib Neg, Comparative-pure, not as great, not greater than, &
assumption of the risk
2. Warranty; exp and implied (fitness of intended purpose)…more of a K theory
Duty
CL- only to____
Modernly—any foreseeable end users and bystanders (could be a dog
even)
Breach
Causation
Damages
Defenses –

3. Strict Liability (design defect vs. manufacturing defect)

Duty –
 Breach
Causation
Damages – gen, special and puni
Defenses -

Warranty of fitness for intended purpose vs. Warranty for merchantability …same thing?
Not doing what it is supposed to do.

Write all 3 in that order, EVERY TIME!

3/31/11

Civil rights actions—(intentional torts) must only intend the act and not the result…just a
volitional act.

Malicious prosecutions—filing false charges knowingly

Pg 1041
1. criminal prosecution instituted or cont’d by the ∆ against the ∏
2. termination of proceedings in favor of the accused
3. absence of probable cause for the proceeding
4. Malice
5. Damages

Non-suit;

Abuse of process; use of power with improper purpose (actual damages and punitive
damages)

Abuse of Process (tort) vs. Malicious Prosecution (criminal) {not on the bar}

FRAUD (Misprepresentation);
Intentional—false statement communicated to a 3rd party which is intended to,
and does, induce foreseeable, justifiable detrimental reliance. General and
specific damages.

Can misrepresentation be based on negligence? Yes, if the ∆ knew or should have

known.

(was tested last year on essay) Misrepresentation can be intentional or negligent.

Know Nuisance as intentional or negligent as well!

“Public use of public likeness” (look up)

4/4/11

Opinions are absolutely privileged.

Statements of future is never actionable if it’s not finite or provable like palm readers;
can’t tell the future.

Intentional/Negligent misrepresentation is ALWAYS a cross over of torts and contracts.

Interference with Business Relations or trade libel (intentional interference with

contractual obligations); the tort of unreasonably interfering with the known business
relationships of the ∏ causing injury. This may also be called interference with a
CONTRACT where the ∆ knows the ∏ has an existing K, or it may otherwise be called
interference with “prospective economic relationships.”

Filing a les pendins one day before close of escrow can be injurious and actionable.
Since it’s an intentional act, punitive damages as well. Valid quiet title action can be
legitimate…ie., a house sold to 2 people at once.

4/11/11

Interference with contractual relationships OR inducing a breach to a valid

contract.

An action will lie in interference with contractual relationships; may sue for expectation
interests. In addition there may be an injunction to prevent you from going elsewhere
until the time period of the contract ends. Punitive damages apply—it was intentional.

REVIEW

Products Liability:
1. Negligence – what would a reasonable manufacturer
would have done; usually a product which wasn’t test
properly. To whom is a duty owed; CL-only to those in
Privity of K vs. modern—any foreseeable end user
(Macpherson vs. ?) Breach is failing to test. Then
Causation and Foreseeability. Damages; general and
special.
2. Breach of Warranty; express (only to those who
read/heard it and relied on it) and implied warranty of
fitness for intended purpose (breach is when it doesn’t
do what it supposed to do).
3. Strict Liability based on breach of manufacturing or
design defect (test is risk vs. utility).
Defenses; misuse of product and ???
Damages: special, general and punitive