TORTS BAR OUTLINE

INTENTIONAL TORTS

ASSAULT
• Act with intent to cause reasonable apprehension of imminent harmful or offensive
touching
• ELEMENTS
o Volitional act by D
o Causing reasonable apprehension of immediate harmful or offensive touching
• Words alone or conditional and future threats are NOT enough/ can negate reasonable
apprehension
• P has to see it/must have awareness/ Immediacy
• DEFENSES
o Consent
 Actual (Express) [“go ahead and hit me”]
• invalid if procured by duress OR fraud
• P must have capacity to give consent (NOT a minor, insane, or drunk)
 Apparent (e.g. bus, game) [everybody acts in that way]
 Implied
• By custom [N.Y. subway]
• Based on reasonable interpretation of P’s objective conduct [objective
standard]
EXAMPLES
 P went to a place or engaged in an activity where certain invasions are
“customary” (fan at baseball game, voluntarily play tackle football)
 D’s conduct was necessary to save P’s life (P injured and unconscious
and doctors performs surgery)
Exceeding Consent:
 the consent is to the P’s conduct NOT its consequences (if P
dies in boxing match .. D NOT liable but if D used lead filled gloves -- D is
liable)
o Defense
 Self-Defense
 Defense of Other [stand in their shoes at your peril] [can only use self defense as
the party you are defending would be privileged to do]
o Assault must be in progress or imminent; use only proportionate force
Elements of defense – self/other:
o threat/invasion is imminent
o defense is reasonably necessary
o force used is reasonable (NOT excessive – D can use same force being used on him)
 NO defense if aggression is concluded -- can NOT be revenge
 NOT available to original aggressor [unless retreated and informed other party of
such]
 NO duty to retreat
 force can only be used to recapture chattel - if in immediate hot pursuit
 D can be mistaken as to the need for self defense -- if mistake is reasonable
 if while reasonably defending himself D accidentally shoots 3rd party .. NO liability
unless D was negligent
 Property [non-deadly]
• Rule: all force must be reasonable
• deadly force never OK to protect property (NO deadly traps to avoid theft)
• X can use reasonable force to stop shoplifter but must have reasonable belief
he shoplifted
Transferred Intent
• If you intent battery but cause assault instead, law imputes intent.

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 • Ex: aiming gun at person 1 and shooting person 2 = assault on person 1 and battery on person 2
BATTERY
• Intentional harmful or offensive touching of another without consent
• Have to intent the act – not the result
• ELEMENTS
o Intent + volitional act [not accident, not seizure]; or substantial certainty test*
(awareness not necessary)
o Harmful/offensive touching – to the ordinary person [reasonable person standard]
o To P or P’s person/dog on leash; horse; dish; cane [ripping dish out of person’s hand]
o Causation [is always implied]
Substantial Certainty Test:
o b/c of act there was substantial certainty to P would make offensive conduct
 ex: there is substantial certainty that woman would make conduct with floor when
her chair is moved
• DEFENSES
o Consent
Actual (Express) [“go ahead and hit me”]
• invalid if procured by duress OR fraud
• P must have capacity to give consent (NOT a minor, insane, or drunk)
 before having sex D failed to tell P D has HIV .. NOT a defense to
battery
 Apparent (e.g. bus, game) [everybody acts in that way]
 Implied
• By custom [N.Y. subway]
• Based on reasonable interpretation of P’s objective conduct [objective
standard]
EXAMPLES
 P went to a place or engaged in an activity where certain invasions are
“customary” (fan at baseball game, voluntarily play tackle football)
 D’s conduct was necessary to save P’s life (P injured and unconscious
and doctors performs surgery)
Exceeding Consent:
 the consent is to the P’s conduct NOT its consequences (if P
dies in boxing match .. D NOT liable but if D used lead filled gloves -- D is
liable)
o Defense
 Self-Defense
 Defense of Other [stand in their shoes at your peril] [can only use self defense as
the party you are defending would be privileged to do]
o Battery must be in progress or imminent; use only proportionate force
Elements of defense – self/other:
o threat/invasion is imminent
o defense is reasonably necessary
o force used is reasonable (NOT excessive – D can use same force being used on him)
 NO defense if aggression is concluded -- can NOT be revenge
 NOT available to original aggressor [unless retreated and informed other party of
such]
 NO duty to retreat
 force can only be used to recapture chattel - if in immediate hot pursuit
 D can be mistaken as to the need for self defense -- if mistake is reasonable
 if while reasonably defending himself D accidentally shoots 3rd party .. NO liability
unless D was negligent
 Property [non-deadly]
• Rule: all force must be reasonable
• deadly force never OK to protect property (NO deadly traps to avoid theft)

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 • X can use reasonable force to stop shoplifter but must have reasonable belief
he shoplifted
o Necessity [also defense to battery]
 Requires that conduct was necessary to avoid a greater harm

FALSE IMPRISONMENT
• Intentional physical or psychological confinement of another within fixed boundaries
• Standard: P does not feel free to leave
• ELEMENTS
o Intent
o Act or omission that confines
 Threats [stop or I’ll shoot]
• Where force is directed against a P’s valuable property and as a result, the P
submits to a restraint on her freedom, an action for FI may be sustained
 Time irrelevant
 Must have awareness OR be damaged
o To bound area
 No reasonable means of egress to leave [take someone to desert & leave them there
– FI]
 No duty to escape
• DEFENSES
o Consent
 Actual (Express)
• invalid if procured by duress OR fraud
• P must have capacity to give consent (NOT a minor, insane, or drunk)
 Apparent (play game)
 Implied
• By custom
• Based on reasonable interpretation of P’s objective conduct [objective
standard]
o Lawful arrest
 officer/citizen can arrest w/o a warrant if crime committed in their presence
 if NO crime was actually committed:
• officer:
o reasonable mistake as to arresting the right person (ID) -- is a defense
o reasonable mistake as to whether or not a crime was committed -- is a
defense
citizen:
reasonable mistake as to arresting the right person (ID) -- is a defense
 *reasonable mistake as to whether or not a crime was
committed -- NO defense
o Shopkeeper priv.
 A shopkeeper has a privilege to detain a suspect shoplifter for a reasonable
time, if he has reasonable grounds, uses reasonable force, and conducts a
reasonable investigation.
 Reasonable: [GIFT]
• Grounds +
• Time +
• Force +
• Investigation
 Must show all for shopkeeper defense

INTENTIONAL INFLICATION OF EMOTIONAL DISTRESS [I.I.E.D.]

• Conduct of an extreme or outrageous nature calculated to cause severe emotional
damage

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 o [intent or reckless (recklessness can be substituted for intent) – acting with disregard
for high probability of emotional distress]
• Puts emotional status of P at issue
• ELEMENTS
o Intent or reckless [only need either intent or recklessness]
o Extreme or outrageous conduct
 Beyond decency [crack egg on head] or
 Known sensitivities or fragile class [children, elderly, pregnant]
 Public [special relationships] [student/professor]
 Lower standard for common carriers and inkeepers [hotel, bus, planes, trains] liable
for even gross insults
 Conduct repetitive [keeps doing it, or has someone do it – sex harassment [have to
tell person to stop]
 exploiting a person’s known fear (D knows P is superstitious)
 insults alone are never sufficient
o Causation
o Damages –
 Only intentional tort that requires damages
 Causes severe emotional distress [more than a reasonable person can endure]
 – physical injury is not required
• Bystander Cases
o If D intentionally causes physical harm to V, bystander (B) can sue for IIED
 B must be Present when injury to V occurred +
 Closely related to injured person +
 Deft knew/should have known of 1 and 2 [must intent to inflict emotional distress on
bystander]
o Bodily harm is not required for family member BUT is required for non-family member
 (B can also prove IIED by showing normal IIED elements)

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS [NIED]

• Duty to avoid causing distress to another
• duty breached when deft creates a foreseeable risk of physical injury through impact or
threat of impact
• To recover, must be injured
Elements - P must show:
• D was negligent in creating a risk of injury to P
• P was in a “zone of physical danger” (near miss)
• P suffers distress
• *P has physical manifestation of distress (heart attack, twitch – to prevent fraud)
o EXCEPT when:
 Erroneous report of relative’s death –distress is presumed
 Mishandling of corpse – distress is presumed
• Bystander Cases
o bystander can recover for NIED if:
o Close relationship/relative of V +
o Bystander present at the scene +
o P observed or perceived the injury [have to see it happen]
 * must be in the “Zone of Danger” to recover
 * also need shock & illness to recover

TRESSPASS TO LAND
• Intentional entry upon land in possession of another without consent
o Invades, remains or fails to remove something from another’s land
o Harm is not needed [throwing rock is enough]
o Noise & light is NOT trespass

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ENCROCHMENT
• Encroaching structure is trespass b/c in order to build you had intent.
• Get an injunction [is ct order]
• For encroachment do not need harm’
o Damages:
o Rental values; FMV if permanent
o Remedy:
o Legal
 Look to benefit of deft
o Injunction:
 If bad faith, tear down
 If innocent, balancing test [harm to P & harm to D]
EXAMPLES -- trespass
o doesn’t matter if D thought it was his own property
o includes throwing something onto P’s land (including water)
o causing intangible items to go onto P’s land is NOT trespass (light, sound, smoke, vibrations – BUT
particles of dust is trespass)
o D or D’s item need not touch the ground (throw a ball over P’s yard, dig under P’s land, fly within
D’s airspace) -- D liable
o P can be anyone w/ actual or constructive possession of the land (AP, lessee, etc)
o If D accidentally (but not negligently) enters the land -- NO liability (D hits golf ball straight down
fairway but it hits a tree branch sticking out and lands P’s yard causing damage -- NO trespass but
liable for damage)
• Negligent Trespass
o For reckless or negligent entry – must have damage [NO liability unless there is damage to
the land]
• NUISANCE
o Substantial and unreasonable interference with one’s use and enjoyment of
property [no trespass] [see below]
• DEFENSES/Privileged Entries – to Trespass
o Accidental [no liability] [hard to prove]
o Consent
o Necessity
 Public – protect community [complete defense – NO trespass and NO liability for
damages]
• D invades P’s property in an emergency to protect community or group of
people (absolute defense --- NO liability for harm, trespass, damage
• (D shoots P’s dog to protect a group of kids from rabies)
 Private – protect self – must be reasonable [incomplete defense – NO trespass BUT
must pay for damages]
• D invades P’s property in an emergency (D in danger or to preserve D’s
property)
• D must pay for any damages/harm but NOT punitive damages, nothing if no
damage
• while the emergency continues P can NOT kick D off P’s land
o Entry to abate a nuisance [FEDD]
 Deft must be owner +
 Demand +
 Entry reasonable +
 Force reasonable
• If squatter on O’s land, O can break down fence to recapture his land
• Mistake is NOT a defense [only intent to enter is required NOT intent to trespass]

Trespass to Land
o Damages:
o Diminished value

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 o Replacement costs
o nominals
o Remedy:
o Legal
 Ejectment/ Unjust enrichment
o Equitable
 Constructive trust, Equitable lien (use tracing)
o Injunction:
 Get injunction to avoid multiplicity of suits/ continuing trespass

Trespass causing Severance [cut down trees]

o Damages:
o Diminished value of land attributable to severance, or use conversion measure [Value at
time and place of taking + interest and expenses]
o Remedy:
o Legal
 Replevin. Quasi-K
o Equitable
 Constructive trust, Equitable lien (use tracing)
o Injunction:
 Land is unique

TRESSPASS TO CHATTEL
• Intentional interference with chattel in possession of another. [i.e. vandalism – interference
with P’s right to possession]
Requires causation + damages as part of prima facie case
Must be tangible property [pets are chattel]
• Damages
o D must pay to have property repaired OR liable for diminished value of the chattel; OR
o D liable for P’s lost use of the chattel
Remedies
Diminution in value or cost of repair
Reasonable rental value
• DEFENSES
o Consent
• Actual (Express)/ Apparent
• Implied
• Based on reasonable interpretation of P’s objective conduct [objective
standard]
o Defense of
• Property [non-deadly]
o Necessity

CONVERSION
• Intentional exercise of wrongful dominion or control over chattel of another without
consent [e.g. theft]
• interference is serious enough to justify P’s right to full value of chattel at the time it is taken [the
longer the interference the more likely conversion NOT trespass to chattels] [ct considers extent
and duration of D’s interference]
• includes intangible property
• anyone w/ possession or right to possession can sue
EXAMPLES
• kicking P’s dog -- trespass to chattels; shooting out O’s dog’s eyes w/ BB gun -- conversion
• Damages
o D entitled to full value of the property at the time it was lost (used price) + interest and
expenses

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 o D gets to keep the chattel upon paying the damages
• NO damages required as part of prima facie case
• Remedy
o Forced sale: FMV at time & place of conversion
o Replevin, assumsit
o Detinue [recovery of prop that was originally legally held [valet take your car]
o Equitable: - Constructive trust, equitable lien [use tracing]
o Injunction if replevin won’t work BUT no injunction if replevin
• DEFENSES
o Necessity
o Mistake is NO defense (D takes P’s coat thinking it’s his own and loses it)

DEFAMATION & PRIVACY [note that these cluster w/ IIED]

DEFAMATION
• Is a defamatory statement of or concerning P published to a 3rd party that results in
damages to P’s reputation[do not need intent]
• ELEMENTS
• (1) Defamatory Statement
o adversely affects your reputation in community; lowers esteem in community
 defamatory on its face [must be an alleged statement of fact (“X is embezzling
money from his employer” .. defamation)
 per quod – need extrinsic facts to show defamation [see below].
o mere insults are NOT defamatory (“P is a jerk” .. NO defamation)
o opinion is NOT defamation (“I think P is a thief” .. NO defamation)
o Libel: -- fixed form defamation (includes written, radio, TV – anything in permanently fixed
form)
o Libel per se
 Defamatory meaning is present on its face of the publication without special
knowledge
o Libel per quod
 Is a statement that is not libelous on its face but rather is libelous only when
combined with knowledge possessed/facts known by the persons to whom the
communication is published.
Slander per se
 Crime
 Loathsome disease
 Chastity/incompetence
 Business incompetence [judge was a drunk]
• (2) of or concerning
o Reasonable person understands refers to P [must reasonably identify P]
o Colloquium
 Language makes no reference to P
 P has burden of proof
 P must be living person (P’s heirs can NOT sue on his behalf)
o Group defamation [if large group of people NOT defamation but if D says “one of the barbers
is a communist” and there are only 3. -- each barber can sue for defamation]
• (3) publication
o To someone other than P [at least 1 person must hear/read D’s statement]
 statement made only to P is NOT publication (unless 3rd party overheard) or P
publishes in good faith herself [in attempt to find source of defamation]
o publication need NOT be intentional (D negligently leaves copy of letter on his desk)
o Each repetition is separate publication
 anyone that repeats the statement is liable to same extent as original speaker/writer
(newspaper that prints it, TV show that airs it, etc)

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  if newspaper repeats what D said w/o reasonable investigation -- newspaper also
liable unless “newsworthiness”
o Whispering to another – overheard is publication
• (4) Damages
• Presumed for
o Libel [written] [however if jurisdiction makes distinction between libel per se and per quod –
P
has to prove special damages [monetary loss] if per quod]
o Slander Per Se
 Crime, Loathsome disease, Chastity/impotence, Business incompetence [judge was a
drunk]
• Damages Not presumed for
o All Other slander [spoken]
o Need pecuniary [monetary] loss [need to prove concrete economic harm] (P lost his job,
house sale fell through, business dropped off) [NOT P is sad or women now avoid P]
**P (private) does NOT have to prove D’s statement was false unless Constitutional defamation (matter of
public concern)
• (5) if statement is Matter of Public Concern [crime, judge, actor] or public figure –
o If the def statement is a matter of public concern,
 the P must also prove falsity and fault.
o if X is a public figure*, he will also have the burden of proving falsity [statement was
fabricated/false] and fault* (actual malice – show of reckless disregard for the truth, or
knowledge of falsity)
 *A public figure is one who has achieved pervasive fame or voluntarily
injected himself into the public eye.
*Fault
The test for fault depends on whether the P is a public figure. The standard
for
public figures is actual malice, which requires the deft to have knowledge of the falsity, or
reckless disregard for the truth. The standard for a private figure is negligence.
Private person
Negligence [shouldn’t have talked bad on phone]
Public figure
Must prove that D
Acted with actual malice [fault] =
• Knowledge of falsity [false/fabricated], OR
• Reckless disregard for truth [whether it was true or false]
Constitutional Defamation:
o if D’s statement is matter of public concern
o additional element(s) (false + malice IF P is a public figure)
o P must show:
o defamatory statement concerning P
o publication
o damages (presumed if P shows actual malice)
o statement is false
o D made statement maliciously:
o Public Figure:
o P must show D knew it was false OR reckless disregard for truth
Private Figure AND Matter of Public Concern:
o If P shows malice (D knew it was false) -- damages presumed
o If P shows D negligent (D didn’t investigate truth) -- P must prove damages (need
NOT be economic)
DEFENSES
o Consent
o Truth [D has burden to prove statement was true]
o Privilege

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  Absolute
• Legislature
• Judicial proceedings [ct complaint included]
o Speech and Debate Clause: gov officials in conduct of official duties
(prosecutor in ct says D is a child molester -- NO defamation)
o NO defamation if D is testifying in court/proceeding
• Executive official statements [elected reps]
• Equal-time broadcasts [campaign during election]
• Communication between spouses
 Qualified
• Socially useful (newsworthy) - [public rights to know]
• Good faith - (reasonably thought it was true)
• Relevant
• Free speech
EXAMPLES
• letters of rec, info about P’s credit worthiness, statements made to police – X
is a murderer
 Press
• Fair reporting of public meeting
o Accurately describes +
o Statements in +
o Public proceeding

* **alternate claim to defamation is Privacy: Public Disclosure of Private Facts

PRIVACY [Invasion of Privacy]

P intentionally and unreasonably intrudes upon another person’s life.
o Damages:
o Mental anguish [cause of action does not survive]
o Remedy:
o Legal
 Benefit to deft / accounting for profits [e.g. National Inquirer]
o Injunction:
 Continuing wrong/ damages speculative

(1) APPROPRIATION OF NAME/LIKENESS

• Includes pictures
• Must show:
• Unauthorized use of p’s name or likeness (pic) +
• For D’s own commercial advantage w/o permission
EXCEPTION
• “newsworthiness” newspaper article about Tiger Woods w/o permission -- OK
• biography about Tiger Woods w/o permission -- OK
DEFENSES
o Newsworthiness
o Consent / permission

(2) INTRUSION UPON SECLUSION/SOLITUDE

D intentionally and unreasonably intrudes upon another person’s private life.
(1) P must be in a place where P has Reasonable expectation of privacy
(2) Not public
(3) Prying is objectionable to a reasonable person
a. listening devices,
b. peephole in bathroom,
c. 2-way-mirrors
d. eavesdropping
e. peeping tom

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 f. making unauthorized video
g. installing cam in bathroom
h. obscene phone calls made late at night
D need NOT trespass - can be committed from a distance (peeping tom)
DEFENSES
o Consent

(3) PUBLIC DISCLOSURE OF PRIVATE FACTS [alternate claim to defamation]

• (1) Highly offensive – objectionable to average person
• (2) Private (confidential but truthful) [not public record] [ex: med records]
• (3) Publicity – widespread dissemination [printed in newspaper, on TV, on internet]
• P must keep that info confidential (consistently kept private)
• Truth NO defense
EXAMPLES
college releases grades to everyone,
accountant gives everyone your tax records,
doctor shares your medical info with others, etc
DEFENSES
o Newsworthiness
o Consent
o Privilege
 Absolute
• Legislature
• Judicial proceedings [ct complaint included]
• Executive official statements [elected reps]
• Equal-time broadcasts [campaign during election]
• Communication between spouses
 Qualified
• Socially useful [public rights to know]
• Good faith
• Relevant
• Free speech
 Press
• Fair reporting of public meeting
o Accurately describes +
o Statements in +
o Public proceeding

(4) FALSE LIGHT

• To establish a prima facie case for False Light, P
must show publication of highly offensive information on a widespread basis. If the
matter is of public interest, malice must also be shown. However, truth is a defense.
Attributing to P views he does not have or actions he did not take
(1) Highly offensive [objectionable to a reasonable person]
(2) Publicity – widespread dissemination [printed in newspaper, on TV, internet]
(3) of false or misleading information
(4) about P’s character or background
(5) If published material is in public interest – malice on part of deft must be proved
D can be liable even if the info is complimentary but untrue
Damages
Allows non-economic damages [such as depression]
DEFENSES
o Consent
o Newsworthiness
o Truth
o Privilege

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  Absolute
• Legislature
• Judicial proceedings [ct complaint included]
• Executive official statements [elected reps]
• Equal-time broadcasts [campaign during election]
• Communication between spouses
 Qualified
• Socially useful [public rights to know]
• Relevant
• Good faith
• Free speech
 Press
• Fair reporting of public meeting
o Accurately describes +
o Statements in +
o Public proceeding

NEGLIGENCE
• To establish a claim for negligence against deft, P must show that deft owed him a
duty as a foreseeable P, that deft breached that duty, and that deft’s breach was the
actual & proximate cause of P’s damages. Finally, deft must not have a valid
defense.
• “negligence” is a specific tort .. exposing another to an unreasonable risk of harm
• can be affirmative act OR omission (family relationship, K, Samaritan statutes, creation of peril)
(A) Duty
Deft had duty to act as RPP under circumstances – deft has duty not to harm others.
• Deft owes duty to foreseeable P w/in the zone of danger (Palsgraf - NO duty owed to
unforeseeable Vs “outside zone of danger”)
i. Problem: where deft breaches a duty to one P and causes injury to a second P
1. Cardozo: - geographic zone of danger
2. Andrews: - anyone
• Standard of Care
• Reasonably Prudent Person RPP (objective):
• D must act as RPP would under same circumstances
i. NO allowance for mental deficiency (stupid, retarded, insane -- NO defense)
ii. NO allowance for inexperience (RPP is a floor not a ceiling)
iii. if D has “superior knowledge” -- reasonable person with superior knowledge
iv. D’s “physical characteristics” are considered (reasonable blind person) – but NOT if D
knows he’s epileptic and drives anyways or D knows he needs to use a cane and
doesn’t and falls
• General Standard:
i. Custom –
1. as evidence of duty/standard
ii. Children –
like age & experience, intelligence, education for 5-18 yrs, unless adult
activity [driving car, boats, hunting] than RPP standard
under 4 incapable of negligence
notwithstanding the above children are liable for intentional torts
parents NOT liable for child’s negligence unless negligent supervision
iii. Adults w/ disabilities –
1. RPS w/ that diagnosis, except mental retardation & mental illness: no
allowance for: negligence and intentional torts
iv. Experts (Professionals)
1. Higher standard of duty – acts as RP expert (professional) in community
a. same care as an average member of the profession
b. practicing in the same or similar community (small town, etc)

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 • (specialist held to higher std than general practitioner) need
expert to testify re expert’s action falling below standard
LEGAL MALPRATICE
 a lawyer may be sued for malpractice if she breaches a
duty to her client and this breach results in harm to the client.
 To assert a successful claim against L, P must show that
L’s conduct feel below that of any other attorney practicing in the locale and
that but for this breach of duty he would not have been harmed.
 Specifically, P must show L (1) breached a duty to him,
(2) causing damages.
 L owes a client a duty to act as a reasonable prudent L
would while representing a client under similar circumstances. [failure to file
suit before SOL runs]
v. Common Carrier
1. Higher standard of duty
must use a high degree of care
liable for slight negligence
vi. Inkeeper
1. Higher standard of duty
vii. Driver / Passenger / Guest:
 Passenger = a person that gives an economic benefit (chips in for gas or tolls,
etc)
 Guest = gives NO economic benefit
 Passenger Rule: driver must inspect vehicle and make safe (invitee std)
 Guest Statute (most states): driver only liable for gross negligence/misconduct
viii. Land Owners:
 (do NOT forget to distinguish “activity” (RPP) from “condition” (traps)
 Always RPP (for discovered trespasser, licensee, invitee – all except
undiscovered trespasser) [see details below]
ix. Others:
Viable Fetus - a viable fetus is owed a duty
If fetus dies in utero as a result of deft’s neg., majority of
jurisdictions permit recovery for wrongful death, provided the
fetus is capable of living independently of the mother even
through artificial means are initially needed.
Every jurisdiction now permits a child, born alive, to maintain an
action in tort for prenatal injuries. [doing drugs during
pregnancy]
if emergency -- X must act as RPP in emergency (unless X created the
emergency)
x. Public EEs:
cops/firefighters -- NO recovery for injury which is inherent risk of job (no matter that
D negligently caused the fire) [firefighter's rule]
BUT garbage collectors, postman, bldg inspectors -- D liable for negligence
xi. Rescue:
 NO duty to “rescue”
 EXCEPTIONS: [also see omissions]
o D put P in peril; OR
o special relationship (family, common carrier, innkeeper (fire in hotel),
shopkeeper, lifeguard, teacher/student, husband/wife)
o rescue only has to be reasonable (throw life preserver, call police, NOT run
into burning bldg)
o assumption of duty:
 if you choose to rescue you must rescue reasonably
Special Duty Rules
Statute
• P must be in the class of persons statute meant to protect from this type of
harm.

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 • If a statute establishes civil liability, it conclusively establishes standard of care [dog on
leash]
• Class of persons
o Is P within the protected class of persons intended to be protected?
• Class at risk
o Was P intended by the statute to be protected from this type of harm?
• Effect: Negligence per se [duty/breach]
Omission
• General rule, no duty to act
• But duty to act if:
o Special relationship
 Parent/child; school-teacher/student; common carrier, shopkeeper,
innkeeper, lifeguard, husband/wife
o Instrumentalities under deft’s control
 ex. Hit & run
o Statutory
 ex: Hit & run
o Creation of peril
 You created P’s peril yourself
o Voluntary undertaking
 Can’t leave them worse off
Landowner
Duties outside land
No duty as to natural condition
Artificial conditions = duty to inspect
Conditions (natural or manmade):
Invitee -- knowable traps (duty to inspect)
Licensee -- known traps [“trap” = condition is hidden or concealed (P can’t
see the danger)]
Trespasser
Undiscovered trespasser –
NO duty – regardless of activity or condition
o Discovered / anticipated Trespasser
post warnings of known danger
Infant
Infant Trespasser (under 18):
focus on whether children coming onto D’s land is foreseeable:
should know b/c “attractive nuisance”, etc
RPP -- regardless of activity OR condition
RPP -- even if D didn’t know they were there
RPP -- even if NO dangerous condition actually attracted child to the land

Attractive Nuisance Doctrine:

o Artificial condition creates unreasonable risk to youth
and
utility is slight compared to risk
Get injunction
o ELEMENTS
Artificial condition [deep hole of water]
o Known about trespassers [foreseeable child would trespass]
[if workers know will be imputed to principal – Agency]
Unreasonable risk [O knows/should know harm could result]
Child can’t appreciate the risk
Utility v. risk balance [ease of eliminating danger]
No requirement that child be injured
If no injury – get injunction

Torts Page 13 of 29
 • Licensee
Someone there for their own benefit – social guest, friend, party, neighbor
O has a duty to warn of hidden dangers OR make safe [known dangers]
• Invitee
o A landowner owes invitees a duty to warn of all
known dangers or those discoverable by inspection. He must make a
reasonable inspection of the premises and make safe.
There for owner’s benefit – and open to public, business customer
Highest duty
Must make reasonable inspection
Warn of all known dangers, or
Those discovered by inspection +
Make safe
 P only enters to use bathroom -- still an invitee
i. *RPP duty can always be satisfied by:
repairing the condition; OR
giving a reasonable warning (oral warning, sign, fence, etc)
*if O’s property is in urban area -- O must reasonably upkeep the property (tree branch from O’s yard
falls onto P -- O liable) BUT if O’s property in rural area -- NO liability
Lessor/Landlord
CL: no duty
ML: has duty
L must warn T of hidden defects existing when T takes over
L NOT liable for conditions that come into existence after T takes over
L is liable to T or T’s guest for common areas
if T’s guest is injured in T’s apt -- L may be liable (T can also be liable)

(B) BREACH
Deft breached duty when he exposed P to unreasonable harm.
A RPP would have …
• Ask what was the specific wrongful behavior [he breached duty when he drove after
drinking]
• Failure to meet the std of care .. P must demonstrate what of D’s conduct constitutes the
breach
• 4 Ways to show Breach
(1) Direct:
Failed to meet standard, exposing others to unreasonable harm
(2) Circumstantial:
[tear in carpet]
(3) Violation of a statute:
Negligence Per Se (NPS):
 D’s breach can be established if D violated a statute (P must still show
causation + damages)
statute says “must stop at red light”, D didn’t stop -- conclusive proof of breach
ELEMENTS
P is member of class of people statute is designed to protect; AND
accident is the type of harm the statute is designed to prevent
DEFENSES
o statutory compliance (1) would have been more dangerous than violation OR (2)
was beyond D’s control:
o D crosses double yellow line to avoid hitting a child
o H runs red light to get W to hospital to have baby
o D w/ no known heart problems has heart attack causing him to run a red
light
(4) RES IPSA LOQUITUR: [use to show breach]
“the thing speaks for itself” -- establishes the element of breach

Torts Page 14 of 29
applies if P is suing for negligence NOT SL
 P can show a breach under this doctrine by showing that:
 (1) Accident does not normally occur absent negligence
[planes usually don’t crash unless there is neg]
 (2) It is more likely than not that D was responsible OR,
instrumentality was under D’s exclusive control
 (3) P did not contribute to own injury
 (4) Effect: gets you to the jury [the effect is neg per se & P will
avoid a directed verdict]
DEFENSE: Deft will argue 3rd person did it
Breach Analysis:
• Having said that deft had a duty not to drink and drive, we now say he breached that duty when he
drove after drinking …
• *if P shows RIL -- P gets to the jury on the element of breach even though we don’t know exactly
what D did)
• *if P shows RIL .-- D can NOT get directed verdict -- *if P fails to show RIL -- directed verdict for D
• D can defeat RIL by showing that it’s just as likely that 3rd party’s negligence caused the accident
• RIL does NOT shift burden of proof

(C) ACTUAL CAUSE [Factual cause]

• But For test– but for D’s breach P would not have been harmed
o Concurrent liability [separate negligence actions occur]
o Joint tort-feasors [several defts jointly engaged in neg conduct – each liable (= jointly
and severally liable]
o Successive tort-feasors [act independently, cause single indivisible injury] [ex: 2 fires
meet to grow into one]
o Ex: Original act result would not occur BUT FOR deft playing w/ the wires, his neighbor’s
computer would not have blown up
• Substantial Factor test
o Several causes; any one alone sufficient
o if both acts contributed -- D liable if D’s act was a “substantial factor” in causing P’s
injury
 [2 fires – anyone alone would be sufficient]
• Alternate Causes test
o Summers v. Tice
 2 acts but only 1 cause, and unknown who caused: -- burden shifts to defts [sue
both then they have to prove it wasn’t them]
o (hunting accident) if only one of 2 D’s acts caused P’s injury but P doesn’t
know which one – Burden of Proof shifts to Ds to show that his act was not
the actual cause, if Ds can’t -- joint/severable liability

(D) PROXIMATE CAUSE [legal cause] – many intervening acts

if proximate cause is satisfied -- factual causation is always satisfied
o 2 elements of proximate cause:
o D is liable to all foreseeable Ps within the zone of danger; AND
o D is liable for all foreseeable harm resulting from his
conduct [has to be foreseeable] (resulting harm not foreseeable .. D NOT liable)
Cuts off liability when results are unforeseeable
Direct causes
Uninterrupted chain of events [link is direct with no intervening factors]
Deft liable if foreseeable
Indirect causes
Dependent Intervening forces that are considered foreseeable
foreseeable intervening Event– D liable
FORESEEABLE intervening causes
o If it is foreseeable that an actor’s neg. would be followed by a
second tort, then the first torfeasor is liable for the entire harm.

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 o [don’t cut off original tortfeasor’s liability – he will be liable for
all injuries including neg doc’s at the hospital]
Rescue - Intervening negligent rescue:
• Rescue is ALWAYS forseeable
o If injury aggravated [neg of rescuers]
o D hits P w/his car, X comes up and tries to help P but dislocates P’s
shoulder - D is liable for the dislocated shoulder (b/c rescue is always
foreseeable)
o If D injures X and Y comes to help X and Y is injured in the rescue --
D is liable for Y’s injuries too
Reaction - Intervening reaction forces:
Efforts to protect self/property [injuries by another reacting to deft’s actions]
o D hits P w/car and others in the intersection trample P -- D liable for
the trampling injuries (b/c trampling is a foreseeable reaction to D’s act)
Checking/medical treatment - Intervening negligent medical treatment:
doctor/paramedic [med mal]
 D hits P w/his car, taken to doctor, doctor puts on tourniquet
too tight and leg must be amputated -- D liable (b/c medial malpractice is
foreseeable)
 Subsequent accident/disease:
• D hits P with car, good doctor takes care of P’s
broken leg, P on crutches falls and breaks his arm -- D is liable for
broken arm (also if P hurt on way to hospital if ambulance crashes -- D
liable; also if P contracts deadly disease while in hospital -- D liable)
Escape
Is foreseeable
UNFORSEEABLE
[cuts off liability]
Gross negligence [would cut off liability]
o Independent Intervening Forces
Are not a natural response or reaction created by deft
FORESEEABLE
 Arguably foreseeable – deft liable – but only if deft’s conduct increased the scope
of the risk
 Acts of god, lightening
 3P negligence
UNFORESEEABLE - Unforeseeable Superceding Event -- D NOT liable
o Not within scope of risk –deft NOT liable – intervening force is superseding
o Crime
o Intentional tort

(E) DAMAGES
o In tort only required to put P back in position he was in before tort occurred
o Law will not award purely econ damages. [damage, you can’t take the bar? Money only]
o punitive damages allowed if D’s conduct was willful or wanton
General Damages
Compensatory for tort
o Must be definite and certain - ct will not award speculative damages
o Flow from tort;
o Purpose: - to make P whole
o None for purely econ damages [i.e. if there is no property or physical damage]
o P can recover medical damages, property damages, lost wages, pain and suffering but NOT atty
fees
Special Damages
Consequencial
o Must be:
o Causal [caused by the tort]

Torts Page 16 of 29
 o Foreseeable [look for unlikely chain – PC issue]
o Certain [business]
o Unavoidable [duty to mitigate; - Avoidable Consequence Rule] [not able to collect if does
not mitigate]
ex: emotional distress damages
o Avoidable Consequence Rule
o P must act reasonably to mitigate [duty to mitigate damages]
o Collateral Source Rule
o Insurance not admissible at trial
o In most states amounts received from medical insurance plans and other collateral sources
are not deducted from P’s damages.
 D injures P, P is a military veteran, P’s injuries are covered through P’s veteran
benefit -- D still liable for full amount of damages
 HOWEVER if state abrogates the collateral source rule by statute than medical payments are required to
be deducted from P’s recovery.
o Joint and Several Liability
o Each liable for entire, may sue either/ or both
o Contribution
o Contribution involves the sharing of the financial burden among tortfeasors.
o Each tortfeasor pays proportionate share
o In most jurisdictions the pro rata basis is determined by the number of joint tortfeasors
involved and NOT upon their relative degrees of fault.
o In a minority of jurisdictions, the degree of fault could affect the amount of contribution but
will not preclude contribution.
o each D is assigned a % of fault, if A pays 100% of P’s damages . A is entitled to contribution
from B and C:
 A 60% at fault
 B 30% at fault -- owes A 30% of P’s total damages
 C 10% at fault -- owes A 10% of P’s total damages
o Indemnification
o Indemnification involves recovery by a non-wrongdoer who has incurred a judgment against
the actual wrongdoer or the one responsible for the harm. [retailer may obtain
indemnification from manufacturer of defective product]
 It seeks the FULL amount of the judgment rather than part of it.
o One secondarily liable is entitled to indemnification [employer must indemnify you if you
acted in course of employment] -- vicariously liable party gets “indemnification” from active
tortfeasor
o X has a right of indemnification if X was NOT negligent and was forced to pay for the
negligence of Y
o Satisfaction
o Full recovery from one joint tortfeasor prevents further recovery from any other
o Release
o CL: release one, release all
o ML: release one, does not release all
Loss of Consortium
non-injured spouse of P also has cause of action against D – can recover 3 types of damages:
 loss of services (mow the lawn, cook food, etc)
 loss of society (companionship, conversation)
 loss of sex
(F) DEFENSES
Contributory Neg [old CL]
o Failure to use relevant degree of care for his own safety – complete bar to
recovery
o P should have been aware of the risk
o if P has any fault -- NO recovery
o is NO defense to SL, intentional torts, willful misconduct
i. EXCEPTION

Torts Page 17 of 29
 1. Last Clear Chance
a. Deft must have been able, but failed to avoid harming P
i. Effect: is that contrib. will not be bar to recovery for neg. P
o only available to Ps as a rebuttal to D’s claim that P was contributorily
negligent
Comparative Neg.
o Modern majority rule
o Compare negligence of P & deft and apportion
o If P partially at fault for his own injury -- jury weighs fault of P and D and assigns each a %:
 P’s damages are $100k, D was 75% at fault, P 25% at fault -- P recovers $75k
o PURE
o P recovers % he was not negligent [P recovers even if 95% at fault]
o PARTIAL [Hybrid]
o P recovers only if his negligence is equal or less than deft
o Recovers % he was not neg
o If P 51% at fault -- NO recovery
Unit Rule: [aggregation of Deft’s fault]
o If multiple Ds -- Ds’ fault is added up and compared to P’s, if Ds’ aggregate fault is less than P’s
-- NO recovery in Partial Comp; in Pure Comp -- P can still recover
Assumption of Risk
o P assumes the risk where he had knowledge [appreciation of danger] and voluntarily
encountered/assumed it. - if P knew of the risk and voluntarily went ahead anyways -- NO
recovery.
o Effect: = complete bar to recovery [bungee jumping, race car driving]
o * rescuers NEVER assume the risk
o always discuss both Assumption of Risk (subjective) AND Contributory Negligence/Comparative
Fault (objective):
o Assumption of Risk -- P knows of the risk and voluntarily exposes himself to it (defense to
SL)
o Contributory Negligence -- P should have been aware of the risk (NO defense to SL)

WRONGFUL DEATH
V’s living relative can sue on V’s behalf and recover damages
Wrongful Death Statute:
P’s representative can recover on behalf of dead P for property damage, medical bills,
loss of support, loss of consortium but NOT pain and suffering recovery

SURVIVAL STATUTES
• All of the above [for wrongful death] + pain and suffering up until V died (paid to P’s estate)
• Defamation and Privacy torts do NOT survive P’s death (3rd party can NOT sue for these if P is
dead)

Survival/Wrongful Death Analysis

 The executor of a decedent’s estate or certain other individuals [spouse, children]
enumerated by the state’s wrongful death statute may assert a claim against a tortfeasor for
damages caused by the tortfeasor’s negligence through a wrongful death claim. In a wrongful death
action, the executor or other specifically enumerated individuals step into the shoes of decedent for
purposes of asserting the claim on the decedent’s estate’s behalf.
If the decedent survived for even a brief period of time, claim for survival is also possible.
 In both actions, the party asserting the claim is required to prove the underlying tort she
alleges led to the decedent’s death.
STRICT LIABILITY [Liability imposed irrespective of fault]

ANIMALS
o An owner or keeper of wild animals will be strictly liable for any harm caused by
animal’s dangerous propensities
o Domestic

Torts Page 18 of 29
 o No strict liability UNLESS deft has knowledge of [dog’s vicious propensities [bitten in the
past -Cal has no one bite rule for dogs = SL]
o Trespassing Cattle: SL for any harm caused by your trespassing cattle
o
o Wild Animals
o Strict liability [SL] for any harm they cause
o But harm must be from dangerous propensities
 (irrelevant that D trained, de-clawed, used iron cage w/ 6 locks, checked it 10 times a
day -- still SL)
 (SL even if P is injured while fleeing from the wild animal – falls and breaks leg)

ULTRA HAZARDOUS ACTIVITY

o One who maintains an abnormally dangerous activity may be liable despite exercise of
reasonable care
o ELEMENTS
o (1) activity involves risk of serious harm
 ex: Acid, Blasting, Toxic chemicals, Radiation, fireworks
o (2) deft unable to eliminate risk even with reasonable care [can’t be made safe] -- safety
precautions are irrelevant -- still SL
o (3) activity uncommon in area where carried out
o (4) Balance [balancing test] – danger v. value to community [use facts to balance]
o (5) Causation
o (6) Damages [harm must be anticipated by activity]
NOTE:
o *must be the specific type of harm expected from that activity (D has a bottle of flammable
chemical in his trunk, he’s in an accident and chemical spills onto street and P walks across
the street and slips -- NO SL, this is NOT the type of harm for which SL applies, instead P
must prove D was negligent) (but if de-fanged snake scares a lady and she slips and falls --
SL b/c it is likely that a person would run from a snake)

o * Nuisance issue may be raised as well as alternate cause of action. And maybe products liability

o * Inherently dangerous activity triggers vicarious liability [i.e. Respondeat Superior +/or
Independent Contractor]

VICARIOUS LIABILITY
o Use concept of imputed negligence: the negligence of one person may be imputed to another b/c of
an existing relationship between them
(1) RESPONDEAT SUPERIOR [Master/Servant]
o Master is vicariously liable for torts of servant that occur within the course & scope of
employment
o Worked for; employed by; hired, authority to control [may also be Independent Contractor]
o Frolic & Detour
o If minor, still within the scope [Master liable]
o Intentional Tort
o Not within scope UNLESS authorized or furthers master’s business [bill collector, bouncer]
o Borrowed Servant Rule
o If you borrow servant, you’re liable

(2) NEGLIGENT SUPERVISING

o Gets master for his own negligence [not VL – Master is directly liable]
o A reasonable employer would exercise due care in supervising his employees
o Employers liability for negligent supervising will depend upon whether employee was in fact
negligent in his work

(3) NEGLIGENT HIRING

o A reasonable employer would do sufficient checking and research to hire a competent
employee. [failed to do background check]

Torts Page 19 of 29
 o Get master for his own negligence [not VL – Master is directly liable]
o Must exercise due care in hiring
o Employers liability for negligent hiring will depend upon whether employee was in fact negligent in
his work

(4) INDEPENDENT CONTRACTOR

o Principal is not liable for torts of agent if agent is Independent Contractor
o EXCEPTIONS:
o (1) Contractor is engaged in inherently dangerous activity
o (2) Non-delegable duty
 Responsibilities so important that employer should not be permitted to
transfer the duty to another [issue of fact to be determined by the ct]
 Although there is no general rule for what is non-delegable, generally cts will hold
matters of safety to be non-delegable.
• ex: maintain roads, fence around construction area; keep street in repair;
keep premises safe for business visitors
o (3) employer maintains control over IC
o Collateral Negligence Rule
o Master is responsible only for risks inherent in the work; not for collateral
negligence of independent contractor

JOINT VENTURE
o Each member of a partnership or joint venture is vicariously liable for the torts of
another member committed within the scope of the partnership.
o ELEMENTS
o (1) Agreement +
o (2) Common purpose [must be for business] +
o (3) Equal rights of voice and control

AUTO – someone else driving your car

o Owner of car NOT vicariously liable for the conduct of another driving your car
o EXCEPTIONS
o Principal/agent
 liable if driver is running an errand for O
o Negligent entrustment [direct liability]
 O liable if O knows/should know driver is a negligent driver
o You know person is drunk and give him your keys to drive
o Statutory
 Family Purpose Doctrine
o O liable if driver is O’s family member if using car for family purposes

PARENT-CHILD
o Generally, parents are NOT liable for the torts of their children [neg or
intentional] UNLESS negligent supervision
o *before doing VL always look to see if P can get D directly (parent leaves gun on table and
child shoots a neighbor -- parent directly liable b/c RPP would not leave gun on table)
EXCEPTIONS
Negligent Entrustment [you know child can’t drive and you give him your car]
Child of known dangerous propensities [bully; mental illness-being
medicated for it; has hit
before]
Child as parent’s agent
+ many parental responsibility laws [school shootings, bullying]

PRODUCTS LIABILITY
o Products liability refers to a commercial seller who supplies a defective product that
causes personal injury or property damage.

Torts Page 20 of 29
 o You must show a defect was in existence when the product left deft’s control.
o Deft may be the original manufacturer, wholesaler, retailer or any other party in the
business of supplying the product. [can sue everyone in the chain]
o **If the product is an ultrahazerdous material, you must analyze under both: products
liability and ultrahazardous material.
o service providers are not merchants for items incidental to service (broken chair at
restaurant) but commercial lessors are merchants (Hertz SL for the car it leases to P)
• D has to be “a” merchant but not “the” merchant P dealt with, every
merchant in chain of distribution is strictly liable (mfg, distributor, retailer)
NO SL for D that doesn’t NORMALLY sell this type of product (atty selling a car)
(1) STRICT LIABILITY IN TORT
o A commercial seller [one engaged in the business of selling or distributing
products] who places a defective product in the stream of commerce is strictly
liable in tort for injuries to persons and property caused by a foreseeable use of
the product.
ELEMENTS
o (1) foreseeable P [in zone of danger] + P’s use of product was foreseeable
o much broader than intended use; misuse is NO defense if foreseeable (standing on a
chair, driving over 55 is foreseeable -- foreseeable)
o *any foreseeable P (even bystander of person using product) can sue any merchant
in the chain of distribution regardless of a contractual relationship between them
o (2) Breach/Defect [the defect is the breach]
i. Defect “Existed” when it left D (mfg OR retailer): presumed if product traveled in
normal distribution channels
o Manufacturer Defect
 Product not made as manufacturer intended
• product that hurt P is different from all others that came off assembly
line (more dangerous than consumers expect)
o Design Defect
 (1) made as intended [all are defective] + but still unsafe [all need to
say on exam] [ex: allergy med caused blindness]
 (2) foreseeable risks are avoidable by a reasonable alternative design
 (3) without alternative design, product is unreasonably unsafe
 (4) alternative design is available and econ. feasible
**P may show that D’s product has a design defect if there was a feasible
alternative available at the time it was manufactured and if so that the
alternative would make the product safer and was economically
reasonable.
o Inadequate Warning
 Failure to warn
 Learned Intermediary Exception – for prescription drugs where no duty by
seller to warn patient if doctor is informed of the risk [includes blood]
o (3) Cause –
o must be causal link between defect and injury
o Actual – but for [failure to have kill switch .. .]
o PC – it’s foreseeable [if use of product is not foreseeable, PC may cut off liability]
o (4) Damages
o Injury and property damage are recoverable but intangible damages (lost profits, etc)
NOT recoverable
o (5) Defense
o Assumption of Risk [is complete bar to recovery]
o Contrib./comparative neg NOT defense to SL in tort
o Disclaimer is NO defense to SL
o do NOT fall for Q that says D acted as RPP --- NO defense to SL

NOTE
o alteration of D’s product after it left D can defeat P’s SL claim

Torts Page 21 of 29
 o D’s safety precautions, quality control, etc are irrelevant
o if X built the product and sold to D (retailer) -- D is strictly liable if product is defective when sold to
consumer
o D is NOT liable if it didn’t put the product in the stream of commerce (it was stolen, etc)
o xii. If customer buys a defective product that injures friend while customer is using it -- customer is
NOT liable for friend’s injuries under SL BUT might be liable under negligence [shampoo usage]

(2) NEGLIGENCE
Duty
o Foreseeable - harm
o Standard:
o Reasonable Prudent Manufacturer [specify exact actions that flow from the duty and
were breached – e.g. a reasonable prudent manufacturer would have provided a
warning]
Fault is an issue in neg
Breach
o Did not act reasonably in putting a warning
Actual Cause
o BUT FOR no warning …
Proximate Cause
o It’s foreseeable when there is no warning, harm will result
Damages
Defenses
o Comparative neg [pure/partial]
o Contrib. neg is not majority rule – complete bar to recovery if P neg.
o Assumption of Risk
o Knowing
o Voluntary
o Effect: complete bar to recovery
(3) IMPLIED WARRANTIES
(1) Merchantability:
• Goods of fair and average quality; fit for ordinary purpose [includes absence of
warning label]
(2) Intended Use:
• Products must be fit for its intended use +
• Buyer must rely on seller’s recommendation
Causation [Actual + Proximate] and Damages [as in SL]
Defense
Comparative neg
Assumption of risk

(4) EXPRESS WARRANTY

Statement of fact or promise by commercial seller creates an
express
warranty that becomes part of the basis of the bargain. [samples, advertisements]
ELEMENTS
Statement of fact or promise concerning goods
Commercial seller
Goes to the basis of the bargain
Causation/damages [went blind] [SL]
Defenses [same as neg]
(5) MISREPRESNETATION
• Commercial seller is liable for material misrepresentation of fact
o ex: the safe way to cure you allergies [but caused blindness] = misrepresentation
ELEMENTS
o material misrepresentation
o intent to induce reliance

Torts Page 22 of 29
 o justifiable reliance
o PC/Damages/Defenses [SL]
o Defenses [neg]
(6) INTENT THEORY [battery]
Commercial seller is liable for injuries caused by an unsafe product if deft
intended the consequences
ELEMENTS
Must show deft intended the consequences [substantial likelihood test]
Damages – compensatory + punitives
DEFENSES
o Consent
• Actual (express)
• Apparent
• Implied
• Based on reasonable interpretation of P’s objective conduct [objective
standard]

OTHER TORTS

NUISANCE
Private
o Substantial and unreasonable interference with another’s use and enjoyment of
property. [dust, smoke, chemicals, criminals, noise, light]
o Objective standard
ELEMENTS
o (1) substantial
o (2) unreasonable
o (3) non-trespassory [ex: noise – not entered P’s prop]
o (4) Balance: Utility v. Harm [only employer in town]
 NO recovery for hypersensitive P (P works graveyard, sleeps during day, church bells go off during
day, P can’t sleep -- P can NOT sue)
Public
Act significant and unreasonably interferes with health, safety, or property right of community
[often DA prosecutes that]
To recover, must suffer some unique damage [as private person must prove unique damage]
in order to sue P’s specific damage must be a different type than that shared by the
general public:
• if D obstructs highway, fact that P used highway 5 times more than others -- P
can NOT sue
• if P lives next to whorehouse which is damaging the entire community but
specifically bothers P b/c of the loud noise -- P can sue (P’s type of harm is
different than that of the public)
need NOT be prohibited by ordinance, statute, etc
• Damages:
o Loss of use and enjoyment [if permanent, use diminution in value]
o Defenses
 Coming to the nuisance is NOT a defense to nuisance but merely a factor ct will consider
 Compliance w/ statute -- is a defense but NOT an absolute defense
Remedies
 Damages [for what’s already happened]
 Injunction [to prevent further damages] [MUST do Inj.]
o Legal [assumpsit]
 Look to benefit to deft
o Injunction:
 Land is unique/avoid multiplicity of suits – if continued harm
 TRO/preliminary/Permanent [depending on circumstances]

Torts Page 23 of 29
Abatement by self-help [make demand first, have to act reasonably]
 (1) deft must be owner
 (2) demand [give notice but deft refused to act]
 (3) entry reasonable
 (4) force reasonable

MISREPRESENTATION
Intentional Misrepresentation (Fraud/Deceit) – is SL tort
o A misrepresentation of material fact made knowingly with intent to induce P’s reliance,
causing P to justifiably rely to his detriment.
ELEMENTS
o (1) misrepresentation of material fact
o (2) scienter (deft knew statement false)
o (3) Intent (to induce reliance for P to act/refrain from acting)
o (4) Justifiable (reasonable) reliance – generally to statement of fact, not just opinion
o (5) damages (P must suffer pecuniary [econ] damages)
o (6) no defenses
NO liability for non-disclosure unless P and D have fiduciary relationship (D (40) at baseball card show,
P (12) has $25k card, D offers to trade 4 worthless cards to P -- D wins b/c NO fiduciary duty)
fraud requires “clear and convincing” evidence
Fraud
o Damages:
o Tort – out of pocket/ value paid minus value received plus punitives
o K – benefit of the bargain
o Remedy:
o Equitable
 Constructive trust
o Injunction:
 NO, equity will not enjoin a crime

Negligent Misrepresentation
o False material misrepresentation of material fact which is made with a lack of due care,
intended to induce reliance to proximately cause P’s damage [limited to commercial/
professional setting]
ELEMENTS
o (1) Misrepresentation [by deft in business or professional capacity] [tax consultant, attorney,
doc, psychologist]
o (2) Breach
o (3) Causation
o (4) Justifiable reliance
o (5) Damages [out of pocket only]

BUSINESS TORTS

TORTIOUS INTERFERENCE WITH K [Interference with prospective business advantage]

o Words or actions by deft intentionally interfering with existing K of P (P’s customer’s,
P’s job), causing damages. (inducing someone to breach K w/ P)
ELEMENTS
o (1) Valid relationship or business expectation
o (2) deft has knowledge of relationship or expectation
o (3) intentional interference by deft inducing breach or termination of expectancy
[ex: seeks you out and offers more money]
 Damages
 D’s motive is a big factor
 Defense:
o competition is expected
Business Torts

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 o Damages:
o Losses proximately caused
o If bad faith - punitives
o Remedy:
o Legal
 Benefit to deft
o Injunction:
 To enforce a negative covenant

TRADE LIBEL
statements that are harmful to P’s business (NOT P’s personal reputation)
ELEMENTS
disparaging statement
relating to P’s business (products, etc)
publication
specific business damages resulting directly from D’s harm
Trade Secrets
o Damages:
o Lost profits
o Remedy:
o Legal
 Unjust enrichment
o Equitable
 Constructive trust/ bill of accounting
o Injunction:
 TRO/preliminary/permanent

IMPROPER LITIGATION

MALICIOUS PROSECUTION
 Initiation of criminal proceedings against P that terminates in P’s favor and for which
there was no probable cause and an improper purpose, resulting in damage to P
ELEMENTS
(1) Institution of criminal proceedings against P
(2) termination in P’s favor
(3) absence of P.C.
(4) improper purpose [ex: gain advantage in custody suit]
(5) damages [lost child] [prosecutors immune]
 Prosecutors have immunity
WRONGFUL CIVIL PROCEEDINGS
 Initiation of civil proceedings against P that terminates in P’s favor and for which there
was no probable cause and an improper purpose, resulting in damage to P
ELEMENTS
(1) Institution of civil proceedings against P
(2) termination in P’s favor
(3) absence of P.C.
(4) improper purpose [ex: gain advantage in custody suit]
(5) damages [lost child]

ABUSE OF PROCESS
 Use of criminal or civil proceedings for purposes for which it was not intended. Must be
intentional misuse for an ulterior purpose, calculated to cause damage.
ELEMENTS
(1) wrongful use of process
(2) for an ulterior motive
(3) definite acts or threats against P to accomplish ulterior purpose

REMEDIES

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Legal Remedies
o Damages
General Damages
Compensatory for tort
o Must be definite and certain - ct will not award speculative damages
o Flow from tort;
o Purpose: - to make P whole
o None for purely econ damages [i.e. if there is no property or physical damage]
Special Damages
Consequencial
o Must be:
o Causal [caused by the tort]
o Foreseeable [look for unlikely chain – PC issue]
o Certain [business]
o Unavoidable [duty to mitigate; - Avoidable Consequence Rule] [not able to collect if does
not mitigate]
ex: emotional distress damages

Punitive Damages
o need willful, malicious conduct
o (1) Due Process protects deft against excessive awards
o ratio: for punitives is 3:1 [exception see below] otherwise deft’s due process right is violated
o presumption: compensatory damages made P whole
o Exception to punitives: if “emotional distress” in compensatory, then deft has already been
punished [so no punitives]
o (2) consider reprehensibility [wrongfulness of conduct]
o (1) Physical harm v. econ harm
o (2) Indifference/reckless disregard for health/safety of person
o (3) Financial vulnerability of injured person
o (4) Repeated actions v. isolated incident
o (5) Intentional malice/trickery/deceit v. accident
o * can get punitives for trespass
o (3) proportionality to actual damages
o Punitives no more that 1-3 times compensatories [otherwise deft’s due process violated],
unless extraordinarily egregious conduct by deft
o (4) wealthy defts pay more

o *Remember: do NOT get punitives if you have gotten emotional distress payments as part of your
compensatory or consequencials.
Nominal Damages
o Declaration of P’s rights
o $1

Legal Restitution
o Money [Assumpsit]
o P has the option of not pursuing damages [i.e. P’s losses], but getting a judgment
for deft’s gains instead.
o Called quasi K or Assumpsit
o Looks to benefit of deft; unjust gains deft received
o P may waive tort and sue in Assumpsit
o Replevin
o Recovery of specific personal property acquired unlawfully, + damages for lost
use. [thief cannot convey title – no BFP]
ELEMENTS
o (1) file suit

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 o (2) post bond
o (3) sheriff seizes prop
o (4) deft entitled to notice & hearing
o (5) deft can post bond in lieu of releasing prop
o Detinue
o Recovery of personal prop acquired lawfully [bailee situation]
o Ex: valet
o Can also sue for damages
o Ejectment
o Legal remedy to restore possession of property from which P was wrongfully
ousted. [ouster of people who are illegally on your land]

Equitable Remedies [Equitable Restitution]

Constructive Trust
o Where there is unjust enrichment, or fraud, ct may impose a CT.
o Equity creates a trust to compel D to re-convey title unjustly retained.
o A CT will also be imposed upon property which is obtained in violation of a fiduciary duty OR
confidential relationship.
o CT is a Court imposed obligation on deft to convey specific property to P. [equity creates a
trust to compel deft to re-convey title unjustly retained]
o A ct of equity creates a trust to compel deft to re-convey title unjustly retained.
o Ct enforces it by power of contempt.
o ELEMENTS [must meet the following elements]
o (1) Deft has title
o (2) acquisition of title is traceable to deft’s wrongdoing [some sort of wrongdoing
enough]
o (3) Unjust enrichment
o (4) no remedy at law [e.g. insolvency] [no money left to compensate P for the
money he is keeping]
o Effect:
o (1) P gets appreciation
o (2) Property belongs to P; deft’s creditors have no claim
o (3) effective on date of judgment
o (4) enforced by contempt powers
o (5) deft must transfer title and possession immediately

Equitable Lien
o Lien secured on deft’s property to secure payment of debt owed to prevent unjust
enrichment. [put lien against prop & when its sold, I get value of that lien]
o ELEMENTS
o (1) wrongdoer misappropriates P’s assets [money or property]
o (2) deft must have title
o (3) trace assets into improvements or acquisition of title to deft’s wrongdoing
o (4) deft’s retention of property creates unjust enrichment
o Effect:
o Preference over all unsecured creditors up to amount of “s money
o * Use when prop falls in value and get a deficiency judgment on the rest

Tracing Rules [discuss at least 3 on bar]

o Way to use equitable restitutionary remedy to prevent unjust enrichment
o Change in form does not change character of property
o Various states use various rules
o (1) lowest intermediate balance in his bank account [you are only entitled to
lowest amount in that account]
o (2) Option rule – victim can follow her money wherever she chooses [can get
deft’s lottery winnings too – say he bought ticket with your money]

Torts Page 27 of 29
 o (3) Victim gets proportionate share in constructive trust [e.g. 1000 D’s, 1000
P’s – split appreciation 50/50]
o (4) Halletts Case – presume deft used his money first - but used P’s money first
for investments

Commingled Property
o P traces his money to an account that has been commingled to get a constructive trust
or equitable lien

Accounting For Profits

o P can discover the amount of deft’s gains and use the appropriate restitutionary remedy
to disgorge.

Defenses to Equitable Restitution

o Sale to BFP without notice - cuts off equitable remedies
o Creditors are NOT BFPs
o Laches –
o unreasonable delay by P in bringing suit that results in prejudice to deft
o Unclean hands –
o unfair dealings with respect to transactions being sued upon

INJUNCTION
o Get for encroachment, nuisance, trespass
o ELEMENTS [I Pay For Big Dog]
o (1) Inadequate Legal Remedy [if legal remedy is adequate then no injunction]
o Damages inadequate – too small; inadequate, or
o Continuing harm – multiplicity of suits
o Irreparable Injury – damages can’t compensate for P’s loss of unique land or property, or
o Prospective tort – wrong has not yet been committed [watch for: no prior restraints of
speech]
________________________
o Replevin
 Inadequate if deft keeps property by posting bond, or
 Sheriff unable to find property
o Ejectment
 Inadequate if P wants removal of an encroaching structure
o (2) Property Right
o Today most cts protect BOTH property and personal rights by injunction
o Historically cts only protected property rights
o (3) Feasibility
o (1) supervision – ct will not issue a degree that would be difficult to supervise
o (2) negative or mandatory injunction -
 Negative [prohibitory] - decrees easy to enforce by ct’s power of contempt [ct says
you cannot do that
 Mandatory [order to do an affirmative act] – more difficult to enforce
o (3) Jurisdiction – decrees requiring acts in other states – problem of supervision/enforcement
[contempt]
o Contempt [is the power the court uses to enforce injunction]
o Penalty for violation of ct order
o Criminal –
 punishes past conduct
o Civil –
 Compensate for harm caused, or
 Coerce future performance
Collateral Bar Rule

Torts Page 28 of 29
 o Requires one to comply with court order even if later injunction is found invalid
[see Con. Law.]
o (4) Balance Hardships – depending on type of injunction
o TRO
 Short term decree to maintain status quo – usually no balancing [stop immediate
harm]
 ELEMENTS
• Emergency [irreparable harm]
• Ex parte
• P must post bond
• 10 days duration
o PRELIMINARY INJUNCTION
 Provisional remedy that requires notice + hearing.
 Purpose is to maintain status quo pending hearing
 P must show:
• (1) likely to succeed on the merits + [go back and look at original cause of
action]
• (2) hardships weigh in P’s favor + [balance harm to P & harm to D]
o In weighing hardships – ct looks at
 (1) Harm to P if injunction erroneously denied.
 (2) Harm to deft if injunction wrongfully granted
• (3) Injunctive relief necessary to maintain status quo +
• (4) bond [if no TRO granted]
o PREMANENT INJUNCTION
 In certain cases for permanent injunction, court may balance
 Issued after decision on the merits
 Encroachments
• If intentional, no balancing – tear down
• If innocent, balance hardship to P if injunction denied, with hardship to deft if
injunction is granted [if unintentional – same balancing as in prelim]
 Nuisance
• Always balance hardships in nuisance action
o Coming to the nuisance is not a defense but merely a factor

(5) DEFENSES to Injunction

Laches
o Unreasonable delay by P to bring suit that results in prejudice to deft
Unclean Hands
o Unfair dealings with respect to transaction being sued upon
Freedom of Speech
o Rule against prior restraints [no prior restraints]
o Has to be special community harm
o No injunction for defamation
o Except:
o Trade libel – can get injunction
o Watch commercial speech
Criminal Act
o Equity will not enjoin a crime

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