TORTS Checklist for every torts question: • • • • • Who is the π ? trespasser , user of product, ….

ect Who is the defendant/who are the defendants? Who are the responsible parties?  manufacturere, LL, employer… ect What is the π ’s injury or injuries?  Harm to person What legal theory/theories can the π assert?  intentional tort, Make sure that it is a torts question.

INTENTIONAL TORTS
Elements of Intentional Torts (OL I. A.)
I.

Voluntary Act

Something that is Conscious and willed

A. Definition: A ∆ is not liable in tort for involuntary acts. ( reflex, unconsciousness)
EXAMPLE: If Tom pushes Dirk into Priscilla and Priscilla sues Dirk, there is no liability for an intentional tort because Dirk did not engage in any voluntary act. EXAMPLE: Dina, during a sudden epileptic seizure, hits Poindexter. While Dina did not intend the harm, there is also no liability because there was no voluntary act by Dina. II.

Intent * Most Important* A. For most intentional torts, intent is established if the defendant either:
1. ∆. desired consequences or had the purpose to bring about those consequences 2. π to show that Def. knew that those consequences were substantially certain to occur

B. Incompetency
1. IF ∆ is mentally incompetent or Minor they can sill possess the intent to commit an intentional tort, but incompetency may affect whether such intent existed As long as def has Intent even If it’s a result of insane delusion there is liability for intentional tort EXAMPLE: Dolores shoots Patty because she thinks Patty is Hitler. Dolores is liable for battery not withstanding her insane delusion because she had purpose to cause contact. Delores is liable notwithstanding the insane delusion had purpose to cause contact

C. Transferred Intent
1. A ∆ acts with necessary intent to inflict intentional tort, BUT causes injury to 3 rd party , the ∆ intent is transferred to actual victim. 2. Applies only to: a. Assault b. Battery c. Trespass to Land and Chattels d. False Imprisonment EXAMPLE: Dorkus throw a rock at Xavier, but the rock misses Xavier and hits Pompador instead. Pompador sues Dorkus, and Dorkus would be liable because he intended to commit a battery on Xavier.

Dorkus liable --> Because he intended to commit battery on Xavier and intent transfers to cause harm to Pompador III.

Causation A. Π has to prove casual connection between Def. conduct and Π injury B. Proximate cause in intentional torts:

IV.

Harm A. Varies based on the kind of intentional tort. B. Ways to establish harm in intentional torts:
1. Specific injury 2. .

V.

No Privilege or Defense

HYPOTHETICAL Dell sees his archrival Pratt walking across the street. Although Dell thinks it’s unlikely he can throw a stone that far, Dell picks up a nearby stone and throws it at Pratt. Has Dell acted with purpose/intent such that he may be found liable for tortious conduct?

Intent  Yes, it was his desire & purpose to make contact and bring about that result, despite him not believing It would happen

HYPOTHETICAL Darla, due to boredom, decides to shoot her BB gun into a passing commuter train. She doesn’t want to hurt anyone, but knows that the trains at that hour will be packed with passengers. She shoots her gun at a full passenger car passing by her, hitting Plax. Has Darla acted with intent such that she may be found liable for tortious conduct? Intent  Yes , even though it wasn’t her desire or purpose to cause harm, she knew that it was substantially certain that result would occur. Its not enough that she should have known π must show she ACTUALLY KNEW

HYPOTHETICAL Six-year-old Brian Dailey pulls a chair out from where he knows Mrs. Garrett is sitting. If Brian knew that it was substantially certain that this would cause Mrs. Garrett to fall to the ground, has he acted with intent? Can be Intent even if child is def. Children are liable for their own torts as long as def formed the requisite intent (known or certain to occur) C/L  Parents are not vicariously liable for intentional torts of children

HYPOTHETICAL Delbert is late for his Torts class. Without looking where he is going, he runs out of the library and collides with Parker. Has Delbert acted with intent? Intent?  NO. Might be negligence or recklessness. Delbert did not desire to cause contact and he did not know it was substantially certain nto occur form is conduct

Donna shoots arrow into room

Battery (OL I. B.)
I. II. A battery arises where: A. The ∆ Intentionally causes a harmful or offensive contact with the π or something closely connected to the π . Elements: A. Intent B. Harmful or Offensive Contact C. Of the person, or something closely connected to person

III.

To establish intent, π has to show either:
A. The def desired contact B. The def knew that contact was substantially certain to result from conduct Be sure to distinguish intent from motive. EXAMPLE: Pete comes into bar review and sits next to Dawn and says “my neck is killing me.” Dawn says that he has decided to learn how to become a chiropractor and offers to help. Pete refuses but Dawn grabs his neck and pulls. Whether Pete feels better or not, it is a battery and Dawn had intent. Motive --> to make him feel better BUT Purpose --> contact

IV.

The harmful or offensive contact element is satisfied if:
A. The contact would Inflict pain or impairment of any body function, or If a reasonable person would regard it as offensive. EXAMPLE: Punching Arnold Schwarzenegger would be enough to constitute battery, even if he is not injured. B. Any contact that would be offensive to a reasonable person is enough for battery. EXAMPLE: Prissy hates to be touched and believes that when people touch her, they are trying to pass alien beings into her body. Dale taps her on the shoulder and asks her for the time. Prissy freaks out and sues Dale for battery. Dale was trying to touch her, but it was not harmful or offensive to a reasonable person. No harmful or offensive contact, No basis for battery. However, if Dale knows of Prissy particular susceptibility and acts he can be liable for battery. (1) If defendant knows the particular susceptibility of the π :

C. It is sufficient for a battery if defendant causes a contact with something close to π . EXAMPLE: Workers at a workplace found the coffee to be increasingly unpleasant. They hid cameras and found out that a colleague was urinating into the coffee urn. This would be battery. Not direct contact, he caused something to bring a harmful or offensive contact. Has to be with the person D. Unlike assault, π need not be aware of the contact. At the time is takes place EXAMPLE: If Patsy falls asleep and while she is asleep, Barney kisses her on the forehead. Patsy finds out the next day and sues for battery. She would be able to recover. She had her bodily integrity invaded therefore her awareness does not matter 4. Privileges and Defenses a. Consent

Mrs. ect . Def had purpose to create apprehension B. D. Bevis --> Assault ( Donny had desire to create apprehension) Precious --> Donny never intended to cause a battery. the intent for assault satisfies for claim for assault and offensive contact since knife hit him EXAMPLE: Beavis has been harassing Donny at school. battery . Mrs. Beavis can sue for assault. Hill comes into the store and finds Sapp drunk. so she throws a knife towards Pim but it ends up stabbing him in his leg. unless ∆ knows of susceptibility of π Example: Sapp worked at a clock repair store. ∆ must act with desire to cause immediate harmful or offensive contact or the Immediate apprehension of such contact. 1. Liability for assault will not e found unless a reasonable person in the same position as a π would experience the same apprehension. Elements: 1. However. Donny decides that he wants to end this so he will scare Beavis into not picking on him. Hill inquires about getting her clock fixed. II. Donny finds his father’s loaded Uzi and brings it to school with the intent simply to scare Beavis. 2. or know that such is substantially certain to occur. Sapp reaches toward Mrs. the fact that the ∆ lacked the ability to cause the harmful or offensive contact does not defeat liability. She sues for assault. Hill and asks to pet her and fix her clock. Def knew that apprehension was substantially certain to result from his conduct C. but under transferred intent. 2.) I. Π must ACTUALLY SUFFER apprehension of imminent battery B. Intentional act that causes the π to experience a reasonable apprehension of an Imminent battery) B. An assault arises where: A. IV.language. Dune intended to commit assault but there is also a claim for battery. Hill could have a reasonable apprehension of a battery. Issue was about how wide the counter was because it determined whether Mrs. 3. Intent for assault satisfies intent for battery. it is not an assault. Precious can bring an action for battery.Assault (OL I. Transferred intent often arises with: Applies . Donny accidentally pulls the trigger just as Precious comes walking out and gets hit in the right arm. defendant must: A. If the π apprehension is reasonable.Look for elements that negate intent. (Assault. Whether she could have reasonable apprehension of imminent battery--> if counter was wide then NO . Intent to commit assault to Bevis transfers to assault to commit battery and precious can recover III. C. if it was feasible for Sapp to touch her then she could have claim for assault. Π must be aware. Contact must carried out almost instantly EXAMPLE: If Dracula says he will come back tomorrow to suck your blood. Intent Reasonable Apprehension Imminent Battery To prove intent. C. Imminent Battery: A. Dune wanted to put Pim In apprehension of imminent battery Pim has claim for assault & has a claim for battery . Reasonable apprehension: A. False Imprisonment) EXAMPLE: Dune wants to scare Pim.

You often have assault and battery together. 2. Def. Has to be a threat of imminent battery or harmful offensive contact with person or something closely connected to person. throws something to scare them. This is enough for an assault even though it was committed by words. Words alone rarely create an assault.V. (words lack imminence) EXAMPLE: Parker is walking down a deserted alley and heard a voice saying that they have a gun pointed at his head. This is not an assault or battery. VII. but doesn’t hit them VI. Dom gets mad and grabs her cat and holds it over the balcony. Dom notices that Pat has put together checklists and diagrams for herself and wants to borrow it. 1. Pat sues Dom for assault. Cat is not a part of her body False Imprisonment (OL I. You can have one without the other. False imprisonment arises where: . Pat says no. EXAMPLE: Throwing a water balloon at someone creates the reasonable apprehension of a battery (assault) and then being struck by the balloon is the actual battery. threatening to drop the cat unless Pat gives him her outlines.Battery without assault:: Sleeping π is never in apprehension but suffered a battery. Must be an intentional threat of an imminent battery. D. A. EXAMPLE: Dom and Pat are studying together for the bar exam.) I.Assault without battery:: Near-miss case.

If there is an open window on the third floor and π would have to jump and risk injury. He is taken to a back room to call the police.the use of physical barriers 2. II.No duration of confinement is required 2. Pablo stays in for a month and then sues David for false imprisonment. Confinement: A. She would lose because she could not prove intent. b. Risk of embarrassment is not a reasonable means of escape. Against the π ’s will: A. they will go out. 4. V. EXAMPLE: David tells Pablo that if he leaves his room. Because Susan does not have a means of escape. Def intentionally confines π into a bounded area against π consent and π Is aware of confinement or injured by confinement B. Intent Confinement Against π will Π knows of confinement or is inured thereby Defendant has the requisite intent for false imprisonment if he: A. Knew that confinement is substantially certain C. ∆ desired confinement B. Confinement generally occurs by: 1. Stuart has falsely imprisoned her. No confinement and no False Imprisonment EXAMPLE: If there is an open window on the first floor and the π knows about it.A. David will tell the world that Pablo is a virgin. Motive is irrelevant. EXAMPLE: Stuart takes all of Susan’s clothes and leaves her in the middle of the woods..Failing to release the π where the ∆ has a legal duty to do so or by the invalid assertion of legal authority 3. someone locks up the store and Patina gets locked in all night and sues for false imprisonment. Force or threats of force C. No confinement can be found because this was a threat of reputational harm. without checking to see if anyone is in the changing rooms. Elements: 1. If Π consents to being confined there is NO false imprisonment EXAMPLE: Plaxis is apprehended by an undercover store detective.Threats of reputational harm are generally insufficient.If π knows of a reasonable means of escape: a. B.m. 1. 3. this is not a reasonable means of escape. there is no confinement. Cannot show that target employees desired for her to be confied III.Length of confinement does not determine FI. At 9 p. 4. Confinement of π in bounded area. After the store closes. EXAMPLE: Target employees are excited for their holiday party. 2. Plaxis says he will wait for the police and then threatens to sue for false imprisonment but cannot .

E.Only false imprisonment claim If π is PHYSICAL INJURED due to confinement EXAMPLE: If during a lecture. Is Delbert liable for false imprisonment? No False Imprisonment No one was aware OR injured 6.because he has consented to the confinement. If there was some sort of physical harm.) I. unlocking the room an hour later at the end of class. If the π is aware she is being confined: 1. Intentional infliction of emotional distress arises where: A. Every student is so engrossed in the lecture that nobody tries to leave the room during the class. Def intentionally or recklessly engages in extreme and outrageous conduct that causes the π severe emotional distress B. there is no false imprisonment.False Imprisonment has occurred and entitled do damages B. Π must be aware OR suffer Harm or damages: A. the baby probably does not know of the confinement. EXAMPLE: If a baby is locked in a room. VI. HYPOTHETICAL Delbert quickly locks Professor Longwinded’s classroom door during a Torts class. there is a false imprisonment claim. If the π is not aware that she is being confined: 1. False arrest: Intentional Infliction of Emotional Distress (OL I. all of the doors in the room were locked but students did not try to leave. If one person tries and cannot get out. there would be a claim. no false imprisonment. Elements: . Otherwise.

2. disguises her voice and says “this is General Hospital.Offensive or insulting language is generally not considered outrageous. Conduct beyond the bounds of decency 1.1. Dora has the intent for IIED. 2. Paul could recover against Don for IIED not because of transferred intent. The element of extreme and outrageous conduct is satisfied if: A. If Don knows that Paul is there and knows that his victim is Paul’s father and Paul suffers emotional distress. This would suffice for IIED because it would be a form of recklessness. says that Paula’s dress is cheap and ugly. EXAMPLE: Dora is at the hospital and walks by the desk where people check in and overhears a discussion and thinks that one of the nurses is saying that Pavala’s child has been rushed to the emergency room. No transferred intent doctrine. Dora calls Pavala. Def knows of the π s particular susceptibility EXAMPLE: Dratt knows that Pon is superstitious and releases black cats onto his property and sends him shattered mirrors. Disregarded a high probability that conduct would bring about distress EXAMPLE: Dora had an ongoing feud with Pavala. iii. .” Pavala suffers severe emotional distress. Consciously disregards a high risk of emotional distress b. Someone in position of authority uses racial or ethnic insults against someone who works under them *developing* . Def is engaged in certain callings (Innkeeper.Recklessness: a. Because the mental state is broader and includes recklessness. but since Dratt acted to exploit Pon’s susceptibility. It was her goal to cause emotional distress and knew it was virtually certain. in front of everyone. it would be considered IIED. but: i. EXCEPTIONS: > lesser conduct i. Dora calls Pavala. 3. 4. If reasonably offensive ii. EXAMPLE: Delilah. Paul can recover against Don NOT because of transferred intent BUT because Don was reckless by knowing his victims son was there witnessing the harm II. b. Paula is humiliated and has a heart attack from embarrassment and sues for IIED.Defendant must act with intent to cause severe mental distress or be reckless in creating the risk of emotional distress. C. common courier).Intentional: a. Mental State: Intent or Recklessness Extreme and outrageous conduct Causation Severe emotional distress 1. 3. NOT CONDUCT THAT EXCEEDS ALL BOUNDS DOES NOT SA a. but because Don was reckless. 3rd parties can recover for IIED by showing that the def was RECKLESS as to whether their conduct would cause severe emotional distress EXAMPLE: Don stabs Paul’s father in front of Paul. Paula would lose. Your child has just been rushed to the emergency room. This would generally be tolerated.

Causation issue that might arise: A. F. if such distress results in bodily harm. Π simply has to prove: 1. nor short lived emotion 3. Where the ∆ conduct is directed at a 3rd party. IIED to 3rd parties A. Π does not have to prove: 1. Elements C. Def intentionally enters or causes something to enter the land of the plaintiff interfering with plaintiff possessory Interest B. Trespass to Land (OL I. If the ∆ intentionally or recklessly causes severe emotion distress: 1. Elements: 1.Severe emotional distress.To any other π (regardless of relationship) who is present at the time.III. Can recover if no bodily harm 3. 2. the ∆ is subject to liability to a π. Severe emotional distress A.Toa π who is an immediate family member of the 3rd party. where the π is present at the time and the ∆ is aware of the π presence. 2. neither transitory.) I. Intent .More than the level of mental distress a reasonable person could be expected to endure. Trespass to land is: A. OR a. Is π an emotional basket case IV. assuming the other elements are satisfied B.The more outrageous the ∆ conduct the easier it will be for π to establish the requisite mental Injury V.Physical injury to recover B.

Fails to remove an object from the laintiff land when under a legal duty to do so EXAMPLE: Darla fires a gun across Pentium’s property. Entry: A. Not intent to trespass. That def desired to enter the land B. Damages c. Mistake is no defense D. He has leased the property to Tom. Designed to prevent unjust enrichment d. This constitutes trespass because the bullet crossed the property of the π . V. She sees Dennis standing on the sidewalk. However. She is liable for this destruction because it occurred while she was trespassing. Prince will recover because Irene intended to enter that land and Dennis intended to get Irene to enter the land. III.There is no trespass on irenes part. If permanent damage occurred. Tom can bring a trespass to land action because he is in possession of the land. the owner would have a claim. and make a left. I. II. but to Prince who has hidden cameras. It was her purpose to enter the land nominal damages Dennis had the intent Irene is pushed onto land . Property doesn’t belong to Dennis. EXAMPLE: Irene is driving carefully across the dirt road. Enters onto π land lawfully but then remains when under a legal duty to leave OR C. Anyone in possession of land can bring action (Tenant. Finds Irene and sues her for trespass. Legal i. Entry into Plaintiff's land To establish intent. π needs to show that: * tested heavily* A. 3. if the person who holds legal title to the land is not in possession. Adverse possessor or leasee may maintain action on land not owned by them. they are liable for the full extent of their harm.2. IV. Dennis says to take his dirt road to the end. Irene pulls over and asks Dennis for directions to the freeway entrance. Three types of remedies in tort: b. Def knew that land entry Is substantially certain to result from conduct C. hits a pothole and loses control. C. When a person is trespassing. but Dennis might be liable If he knew she would land on the land E. Restitutionary i. ∆ enters or causes a 3rd person or object to enter onto the πs land 1. She hits an azalea bush worth $15. that person may not maintain a trespass action. Π must be in actual possession OR have right to immediate possession of that land B. adverse possessor EXAMPLE: Darla thinks she is crop dusting her own land but the pesticide lands on Owen’s land. Π ’s land: (who can bring action? who is proper plaintiff?) A. Π land includes airspace and subsurface to a level π did or could make beneficial use of B. Equitable . Remedies a.000.Anything can cause an entry Has to have some tangibility B. To maintain action for trespass: A. it is the INTENT TO ENTER LAND EXAMPLE: Irene is driving around and gets lost in an unknown area.

Successful π entitled to: 1. Injunction II. 2. Mesne damages: compensate for loss of use of land and are measured by rental value of prop or benefit gained by wrongful possessor whichever is greater iii. G. Trespass to land: a. Monetary damages don’t to land c. wrongful possession by the ∆ ii. Trespass to chattels arises where: A. Proof of legal title 2. 4. Proof of π right to possession AND 3. 2. Action brought by plaintiff to recover possession of real property* 1. With personal property of plaintiff B.i. Intent Interference Plaintiff's chattel Harm . 3.) I. Nominal Damages b. Recovery of property 2. True even If ∆ acted in good faith believing he had rightful possession of property Trespass to Chattels (OL I. Ejectment i. Def intentionally Intermeddles with plaintiffs chattel causing harm. At C/L where ∆ mistakenly trespasses on or takes possession of π's property & makes improvements 1. Elements: 1. Π is entitled to recover the property & need not compensate the ∆ for these improvements.

Tangible personal property or intangible property that has physical representation promissory note.Dispossession: Direct interference . documents in which title is merged warehouse receipts or bills of landing) B.In significant enough way to provide damages III. This is sufficient to create intent for trespass to chattels. Once they finish the first bottle. Damages Replevin restitutionary remedy that arises to get back personal property of which one is has been dispossessed B. D. ∆ Intentionally performs the physical act that interefers w/ π chattel. Intent is satisfied when: A. Conduct giving rise to trespass to chattels: 1. Interference is actionable if it interferes with plaintiff possession 1. Elements: 1. believing it is his but it is really Paul’s. B.Def uses or 2. Intent Dominion & Control Substantial interference . Dextra desired to intermeddle with puppy NO ACTION because there is no harm V. ∆ takes chattel or wrongfully refuses to return it 2. 2. Remedies: A. They are playing a game where every time “foreseeability” comes up. Mistake Is no defense EXAMPLE: Dale is leaving a restaurant and takes a blue denim Levi’s jacket. Pam’s dog is in the backyard and Pam tells Dextra not to let the dog in the house or touch the dog. Conversion arises where: A. EXAMPLE: Pam and Dextra are at Pam’s apartment. Keeping the jacket for a week would be and Paul would likely be able to recover the rental value of the jacket. they do a shot of tequila.) I. Pam says she will go to the store to get more. Π must be in actual possession OR have right to immediate possession of Chattel IV.II. 3. H. C. The def intentionally exercises dominion and control over plaintiffs chattel or personal property constituting a serious or substantial interference B.Damages 4. Harm: Actual Damages A. there is no case. Actual damage or dispossession that is not entirely insignificant EXAMPLE: Keeping the jacket for five minutes is not significant enough.borrows without authorization or 3. Chattel A. Conversion (OL I. ∆ liable even if he did not intend or recognize the legal significance of his act. If the dog is not harmed.Intermeddling: interference with chattel that does not directly affect π possession C. Pam comes back to find Dextra holding the dog and sues for trespass to chattels.

Wrongful acquisition (theft.Plus consequential losses B. misdelivering. Mistake does not matter must result in substantial Interference EXAMPLE: Dale takes Paul’s jacket and loses it. receiving stolen property) Wrongful transfer (selling.market value at time action commenced or value of lost use 2. 3.No seizure of chattel is allowed until hearing has taken place to determine the πs entitlement to the chattel 5. More serious than trespass B. Typical remedy is forced sale: 1.Can mitigate damages C. who pays fair market value. Drake is a converter as well and can be sued.Measure: Market value at time depravation . Damages suffered from depravation may also be recovered 1.When π seeks to recover the chattel.000. Dale would have to pay fair market value. embezzlement. Bona fide purchaser for value. Prissy can sue Cruella for conversion. π recovers present value of chattel established at trial . 2. 2.II. If Prissy cannot find Cruella.000.Material alteration OR 6. Extent & duration of ∆ dominion and control B. Cruella sells the vase to Drake. Extent & duration of resulting interference w/ π right to control E. Is liable.Significant misuse IV. 4.Permits π to recover Immediate possession of property (at beginning of action) 3. Dominion and Control A. Drake kept it so creating substantial Interference Intended to keep it III. Sued for conversion. he must post bond as security against the possibility that judgment will be found for ∆ . Either has to pay $1. destruction or severe damage 5. ∆ good faith D. ∆ may post bond as well if he wishes to retain chattel until action has concluded 4. inconvenient & expense caused to π V. harm done to chattel AND F.Judgment for π but chattel not returned.Converter is required to pay the Fair Market Value of Chattel AT THE TIME is was converted 2.An action at law for recovery of specific chattels tht have been wrongfully taken or detained. or pledging) Wrongful detention (withholding from owner) Loss. A longer period of interference and greater use of the chattel by the ∆ . there is a serious and substantial interference. ∆ intent to assert right inconsistent w/ others right of control C.000. Intent: * tested most* A. EXAMPLE: Cruella steals Prissy’s Ming vase worth $1.000 to Prissy or return the vase. more likely it will be considered conversion C. Types 1. Factors to Consider A. Remedies and damages A. Replevin: (Only for personal Propert NOT for real property) 1. Had the purpose to exercise dominion and control over the jacket and by losing it.

TRESPASS TO CHATTELS CONVERSION Intentional tort Committed by intentionally dispossessing or intermeddling with a chattel in the possession of another Defendant is liable for damage or diminished value of chattel.) Remember POPCANS Privilege Others Property Consent . Defenses and Privileges to Intentional Torts EXAM TIP (OL I. Intentional tort Committed by intentionally exercising dominion or control over a chattel and seriously interfering with the rights of the owner. I. Defendant is liable for the full value of the chattel at the time of the conversion.

X had impliedly consented by agreeing to play. Penny gets herpes and sues Dale. Emergency action is necessary to prevent death or serous injury b.. If the π does consent: There Is not recovery for any damages H. E. do whatever it takes to stop him. Π can manifest consent expressly. During the game. there is still consent because the counterfeit bill is a collateral matter. Reasonable to believe consent had been given. If Penny is a prostitute and they engage in sexual relations and Dale pays Penny with a counterfeit bill. Satisfied when: 1. Even if done intentionally. . ∆ must not exceed the scope of consent G. ect. But when its to a collateral matter there is still ocnsent EXAMPLE: Dale is about to become intimate with Penny when Penny asks if he has herpes. knowing he does. or as a matter of law. ∆ must act freely In order to perform an essential function 2. Consent must be effective & F. & this interest justifies harm caused C. Will not be deemed to have consented. Limitation:What the def would reasonably believe Standard is: I. Person affected by ∆ conduct consents B. he is not liable If the π consented to the act which constituted the tort. gave express consent. Polly sues for battery. Assualt. 1. Would lose. Important personal or public interest will be protected by ∆ ordinarily prohibited conduct. 3. professor sues for battery.Consent as Matter of Law ( Π is unable to consent) a. Even if ∆ committed an intentional tort. Student grabs his arm and pulls the Twinkie away. No reason exists to believe that π would not consent Mistake can vitiate consent when:it goes to consequence or nature of act. Express consent exists where: Plaintiff by words manifests willingness to be exposed to intentionally tortious conduct EXAMPLE: Professor is concerned about his weight and needs to stop eating Twinkies. II. by implication. Tells class that if they see him eating a Twinkie. a. Offers her arm and receives an injection. ∆ has burden of proving existence of a privilege & 3.Authority Necessity Self-defense Privilege I. EXAMPLE: Polly is in line for a vaccination but does not know this. lies and denies it and then sleeps with Penny. that the privilege was exercised reasonably under the circumstances Consent (battery. Dale.) D. Reasonable person would be expected to consent under circumstances c. Implied consent arises where:Plaintiff through conduct manifest willingness to be exposed to tortious conduct EXAMPLE: X plays pickup basketball. an opposing player trips him and causes him to injure his leg. a. but there was implied consent. ∆ may not be liable for conduct that would ordinarily subject him to liability A privilege may exist where: A. Limitation:Any conduct in excess of reasonable consent 2.

Even when consent is expressly or impliedly given by the π the circumstances may be such that this consent is Ineffective & will not operate as a defense. Hima responds. B. The def honestly and reasonably believes that the force used is necessary to avoid Imminent harm . Can Billy claim the defense of consent for the battery? There is NO CONSENT the bat Is actually made of wood goes to nature of act and therefore there would be no consent III. It is the product of a mistake of fact or law as to the nature or consequence of the def act AND b. b. made of wood. Incapacity a.HYPOTHETICAL Billy Club asks Hima Tohma if he can hit her with his new baseball bat. consent as ineffective where the ∆’s tortious conduct also constitutes a crime. Without the particular knowledge the ∆ may interpret a π’s actions as consent 5. Fraud: Consent is not effective if: a. Minority: a. Fraud.defect. The def is aware of the mistake 2. So long as ∆ act doesn’t constitute breach of peace c. Consent ineffective if π is member of the protected by the violated criminal statue. Induced by ∆ intentional deceit as to the essential consequence or nature of his act Duress: Consent is not effective a. Self-Defense I. b. violation of criminal statute 1. Frequently tested: Mistake. Mistake: Consent not effective if: a. 3. Defenses to Consent A. in fact. or intoxication are incapable of consenting o tortious conduct. If it s induced by threat of imminent harm to the π OR b. Arises where: A. Incapacity. knowing that the bat is. swings and hits Hima. Exception i.. “Sure—you can’t swing that foam bat hard enough to hurt me anyway. Duress. Violation of criminal statutes a.” Billy. Majority a. b. consent to a criminal act is effective for purposes of civil liability for that conduct. Young children and people whose mental capacities are impaired by mental disease . By a false assertion of lawful authority over the π 4.

Donna is in the parking lot when Igor sees Paula walking towards Donna. Paula sues for battery. Even if Paula was only carrying a fishing pole as an apology gift. II. Donna intended contact but argues self-defense based on the earlier threat. Defense of Property I. In all jurisdictions do not have to retreat form one's home Major Jurisdictions No Retreat . The force used must be proportionate to the threat: A. Donna picks up a stone and throws it and hits Paula. she can respond accordingly. III. Defendant only need be reasonable and must respond with proportionate force. with a baseball bat poised to strike him. Igor picks up a stone. II. Def may take reasonable steps to defend property ( real and personal property) .” Donna is alone in a parking lot that night when she sees Paula walking towards her with something in her hand. Believing that Percy intends to hurt him. A third party who comes to aid of another and commits Intentional tort because she honestly and reasonably believes he is protecting one for imminent harm is not liable for tortious conduct EXAMPLE: Igor overheard the threat that Paula made to Donna. Once the threat is over: There Is no claim of self-defense EXAMPLE: Donna and Paula exchanged harsh words. he reasonably believes he’s being threatened and responds proportionately and is not liable and successfully assert self defense Defense of Others I. Retreat: 1. ∆ who makes mistake about whether defense of 3rd person is justified or to the degree of force that is reusable cannot assert the defense & will be liable to the π for intentional tort. 2. I am going to teach you a lesson. Dylan wrestles Percy to the ground. Paula sues for battery. Igor could successfully assert defense of others because he reasonably believed that Donna was at risk of imminent harm and responded with proportionate force . Is Dylan still privileged to defend himself if it turns out that Percy was not actually intending to hurt Dylan? Yes. if Donna believed she was threatened. throws it and hits Paula. Minor jurisdiction Retreat HYPOTHETICAL Dylan sees Percy approaching him in a bar. Paula says “wait until the next time I see you alone. Cannot use deadly force when threatened with non deadly force B.B. causing injury.

Paul can chase Dale and use reasonable force to get it back. Paxton sues for conversion and trespass to land. The def is asserting that right thing to do was to commit Intentional tort. Could raise Fifth Amendment takings issues. A. One may use reasonable force to eject a trespasser from personal property after asking them to leave. A. Public necessity:Def (often govt actor) is acting to protect public form severe harm EXAMPLE: Earthquake starts a fire in the city and to stop the fire. A defendant may never use deadly force to protect personal or real property. No room for mistake is he was wrong he would be liable Necessity I. Dev ties his boat to Paulo’s dock and walks across Paulo’s land in search of help. The greater good was trying to stop the fire. which belong to Paulo. ∆ is permitted to injure π’s proper if this is reasonable necessary to avoid substantially greater harm to eh public. himself. Defendant will be liable for any harm caused during the exercise of the privilege. b. Dev motors to the nearest dock. Private necessity: *tested more* Where def commits intentional torts and believes it is better than to risk the likely consequences EXAMPLE: Demora is out on the water in a small boat loaded down with important cargo when a storm arrives. Demora could assert this defense. Greater good was trying to stop fire a. Demora takes her boat and ties it to Prince’s dock notwithstanding the “No Trespassing” signs. or to his property. IV. Paxton would lose. Recapture of chattels: A. One may use reasonable non deadly force to retrieve personal prop provided a request was made and def is in hot pursuit EXAMPLE: Dale took Paul’s jacket. Takings issues (con law context) b. Paul saw it and asked for it back. The lesser evil was committing Intentional ort II. Concerned that he will sink and drown. Look for situations where it escalates where it starts as property and escalates III. Is Dev liable to Paulo for trespass? for the damage to the dock? Def can assert necessity . If private individual is exercising privilege of private necessity she Is liable for harm caused HYPOTHETICAL Dev is boating on a lake when his motor boat springs a leak. Devilla dynamites Paxton’s home to stop the spread of the fire. TWO TYPES 1. Dale takes off with the jacket. lessor evil to commit trespass to land than to risk losing the boat and maybe her own physical safety was at risk a. but because harm occurred during privilege even def not liable for trespass def has to pay for harm to dock .II. ∆ not liable for damage to property 2. The boat damages the dock while moored there.

Manner of investigation EXAMPLE: Drug Co. Misdemeanor: Police officer can arrest misdemeanors that constitute breach of the peace C. Private individuals: Can arrest if he reasonably believes a felon is being committed Shopkeeper’s Privilege II.Suspicion 3. Discipline IV. Felony: Police officer can arrest person he reasonably believes committed the felony B.Authority I. Depends on length and manner of detainment. has an undercover detective who sees Paxton shopping on a hot day in a long heavy coat. valid on its face he is not liable in tort for the arrest. He believes he saw Paxton put something into the pocket of the coat. Parents and teachers may use reasonable force to discipline children . Uses reasonable force to detain the person C. Grabs and detains him until the police determine that he did not take anything. He has reasonable suspicion that the π has stolen goods B. Where ∆ is police office acting pursuant to warrant. A ∆ shopkeeper is not liable for false imprisonment if: A. Arrest A.Duration 2. Either on premises or in immediate vicinity If store owner has reasonable suspicion that someone has shoplifted they may detain that person for a reasonable time provided they conduct an investigation in a reasonable manner 1. III. And detains the π for a reasonable period & in reasonless manner D.

B) prevail.” IMMINENCE "ONE DAY" LACKS IMMINENCE CANNOT ESTABLISH TORT OF ASSAULT . Jack will A) prevail. David approached Jack from behind and yelled. David saw Jack at the local grocery store. because he was upset by the telephone call and David should reasonably have known that he would be. David telephoned Jack and repeated the threat. In a cause of action against David for assault. late into the night. one day I am going to kill you. C) not prevail.BAR EXAM APPLICATION Question 1 David’s neighbor. D) not prevail.” Unknown to David. if the reason he refrained from practicing his trumpet was fear of retribution from David. because he was unaware of David’s statements in the store. is a musician and practices with his trumpet every day. Dismayed by Jack’s apparent indifference. That night Jack went to bed early and did not practice his trumpet. Frustrated by the amount of noise coming from Jack’s house every night. Jack was wearing the earplugs he wore to perform live and did not even know that David was speaking to him. “If you don’t stop playing the trumpet. Jack was shocked to discover his neighbor disliked his music. Jack. because David said “one day I am going to kill you. One day. and quickly apologized.

B) fail. Expecting the worst. Tim’s cause of action for false imprisonment will A) fail. PLAINTIFF AWARE. Larry noticed Tim’s sweatshirt and watched him spend over an hour slowly moving through the various book stacks. because Tim was aware of the confinement. Tim eventually moved to the cash register to pay for his selection of books. on a particularly warm day. After paying for his books. wouldn’t have action if he was YES THERE WAS CONFINEMENT. because the shopkeeper’s privilege will prevent the cause of action. the police arrived and asked Tim to empty his pockets. the owner of a small bookstore. Larry moved a large heavy book cart in front of the front door. Two days after the most recent shoplifting incident. ECT IS SHOP KEEPERS PRIVLEGE APPLICABLE UNDER THE FACTS DEF HAD REASOABLE SUSPICION THAT TIM WAS A SHOP LIFTER AND CONDUCTED A EAOSNABLE INVESTIGATION AND DETAINED FOR A REAOSNABLE TIME . because Tim was not in fact a shoplifter. because Tim was not harmed by the confinement. is very concerned about a recent wave of shoplifters wearing sweatshirts with large pockets and sneaking books out in the pockets. Tim discovered his exit was blocked by the book cart.BAR EXAM APPLICATION Question 2 Larry. Tim entered Larry’s bookstore wearing a sweatshirt similar to those worn by the shoplifters. do not have to be harmed C) succeed. Tim did not have anything in his sweatshirt pockets. D) succeed. Shortly thereafter. and called the police station to report a shoplifter.

B. Harm other than personal injury or property damage 4. Frame the elements as follows A. No affirmative duty to take action to aid or protect a π who is at risk of injury unless such action is taken. . Duty Foreseeable Π Generally no affirmative duty to aid Misfeasance Nonfeasance Special Relationships I. The measure of the duty owed C. Plaintiff has to prove damages G. Breach of Duty: 1. Obligation requiring the ∆ to conform to a certain standard of conduct to protect others from unreasonable risk That when the def is engaged in affirmative risk creating conduct causing personal Injury or property damage a duty is owed to a foreseeable plaintiff. Where the def Is a land possessor/ LL/Utility/Government entity Unforeseeable Π s II. Based on nonfeasance and misfeasance. Whether the law imposes a legal obligation on the def toward the plaintiff B. Are there policy reasons to cut off liability with other elements established F. the ∆ has a duty to take action to aid π . Traditional Rule A. use the facts and engage in analysis. Defenses EXAM TIP Use headings on a negligence question—separate out the elements. In the famous Palsgraf case. B. Damages: 1. Duty: 1. Proximate Cause: 1. Unforeseeable Plaintiff 2. If ∆ conduct is responsible for placing π in a position where he requires aid. Cause in Fact: 1. General duty rule: A.NEGLIGENCE MOST IMPORTANT* WHEN IN DOUBT DEFAULT LEGAL THEORY I. Nonfeasance -.Failure to Act 3. Justice Cardozo articulated the rule that: A. Connects def breach to plaintiff injury E. On an essay. Standard of Care: 1. The failure to meet the standard of care D. ∆ owes a duty only to foreseeable πs III. Duty is a significant issue where there is: (EXCEPTIONS) 1.

Parker runs across the ice cream parlor to help Xena. Undertaking to Act A. sits on the stool and falls on to the ground because of the disrepair of the stool. fails to stop at a stop sign. V.1. Affirmative Risk creating Conduct B. Owes a duty to π . but if she undertakes to act she cannot then swim away. Misfeasance: A. They will need to be grossly . Misfeasance (Negligent Omission): Occurs when ∆ fails to do something that a reasonable person would have done( stopping at stop sign). Three blocks away. He knows a train is coming and watches it kill the baby. EXCEPTIONS: 1. created an affirmative risk of harm. The parked car contained explosives. and a huge explosion occurred. Does Della owe Xena a duty? Parker? No duty the negligent act in not maintaining the stool Xena would be owed not Parker BUT rescuers will be able to recover because a duty was owed to them IV. Failure ot Act A. General Rule: Resueres must act reasonable in effecting the resue. Polly tries to avoid him and drives off the bridge. Those who do rescue others are not going to be liable. Rescuers: Owed an independent duty III. The def tortious conduct creates need for rescue EXAMPLE: Dexter is driving across a narrow bridge and is driving on the wrong side of the center line. Owes a duty to Polly IV. His negligence created the need to rescue. Diablo owes no duty. Polyanna was walking down the street and was hit by a piece of falling glass from the explosion. If she did rescue and injury him. The parents of the baby sue Diablo for negligence. Good Samaritan statutes: EXAMPLE: Delilah is on a deserted beach and sees a car fly over a bridge into the water. This was misfeasance. Nonfeasance: Failure to render promised act EXAMPLE: Drudge is driving negligently. She sues Drudge for negligence and will lose because she is not a foreseeable π . i. jumps the curve and collides into the back of a parked car. Dexter has a duty. Nonfeasance begins with the assumption that there is no duty at all. breaking his ankle. Some jurisdictions say you are only liable if you leave the defendant in a worse position. Negligent Omission EXAMPLE: Debo is driving and because he is not paying attention. Duty is owed. Delilah has no obligation to rescue. Xena. but slides on the ice cream Xena dropped when she fell. HYPOTHETICAL Della negligently fails to maintain a stool in her ice cream parlor. B. Duty to rescue or aid EXAMPLE: Diablo is walking on the railroad tracks when he hears the sound of a baby crying. 2. a customer.

Special Relationship: Relationship of mutual dependence A. However she cannot leave plaintiff In worse position HYPOTHETICAL Dino. Def creates reliance EXAMPLE: Palatin calls Dina saying that he has chest pains. Here there Is a specil relationship herefore he has a duty to rescue but the OTHER passengers do not have a special relationship . Reliance A. then abandons the rescue because she spots a rare fish she wants to inspect? Typically. Employer-Employee during scope of employment 2. Business-patron & 6. Darla would have no duty to rescue despite her ability and awareness of the need Nonfeasnace no obligation to take any affirmative steps. HYPOTHETICAL Darla. a driver for Mauvehound Bus Lines. Does Dino have a duty to come to the passenger’s aid? Do the other passengers? Employee of common courier. VI. an expert swimmer. Common carrier and innkeeper – customer 3. he would have a duty to rescue it. Recognized relationships 1. Social Co-adventurers EXAMPLE: If Diablo was the father of the baby on the railroad tracks. BUT here she begins to act and stopping the rescue is no reasonable conduct. She owes him a duty because she said she would come to his aid. Parent-child 5. Is Darla liable if she ignores Paulo’s plight and continues sunbathing? What if she starts bringing Paulo back to shore. School-pupil 4. Dina says she will take him to the ER.negligent and reckless and more culpable to be liable V. is sunbathing on a deserted beach when suddenly Paulo’s car drives off a bridge and into the water. sees that a passenger is having difficulty breathing. On her way over to his house. Dina runs into friends and goes with them instead of Palatin. ∆ has duty to take affirmative action in aid of plaintiff where a special relationship exists between ∆ π B. Jailer-prisoner 7.

Form of misfeasance--> Duty to any foreseeable π. the father can be sued. A special relationship exists between the ∆ & the 3rd party that imposes a duty upon the ∆ to control the 3rd party’s conduct. She says she is going to kill him when he does. ∆gives something to someone that knows Is incapable of handling dangerous object EXAMPLE: Father gives son a gun to play with. EXAMPLE: Psychotherapist exercises enough control that when they know of the patient’s dangerous propensity. Traditional rule: Social host provider of alcohol had no duty to that 3rd party 2. C. The prison has a duty to warn people in the neighborhood. Impose liability on commercial establishments who serve alcohol Not expanded to social hosts D. EXAMPLE: A mother knows that her son always tries to kill babysitters when she leaves him with them. A special relationship exists between the ∆ & the 3 rd party that gives the 3rd party a right of protection EXAMPLE: Delberto and Tina are strangers sitting next to each other at a bar. Start looking for special relationship Courts require high level of forseeability in order to find existence to duty. Dram Shop Acts: a. Special relationship is not enough A. OR B. IV. Negligent entrustment: 1. EXAMPLE: A prison has a dangerous criminal locked away and the criminal escapes. Providers of alcohol 1. EXCEPTIONS: Special Relationship HYPOTHETICAL . They start chatting and Tina says her husband is going to come by and pick her up. Tina leaves and shoots her husband. She must warn the babysitter. there is a duty to warn the party that might be in danger. If son shoots a third party. Duty to Protect: (3rd category to nonfesance) III.Duty to control third parties II. Husband sues Delberto for not warning him. One generally has no duty to take affirmative steps to protect others form 3rd party criminal acts absent an exception. There is no duty to control the conduct of a 3rd party as to prevent him from causes physical harm to another UNLESS: A.

Proprietary function: (Will not find Duty) 1. fire department) is sued for failing to provide an adequate response. This would be ministerial function and parlu would be able to recover 2.Tenant Paxton is robbed at gunpoint by a stranger while in the laundry room of his apartment building owned by Drucilla. The decision of where to place the stop sign is a judgment decision on the part of the city. Acting in area traditionally occupied by private entities 2. Parlu would be able to recover against the city. saying there should have been stop sign. Failure to respond doesn’t create duty i. Discretionary activity: (No duty) 1. Once govt has undertaken an act It must do so non-negligently EXAMPLE: Parlu is injured at an intersection when she it hit by a car. . Treat them the same as any other ∆ B. The agency has increased the danger beyond what would other wise exists 3. Another tenant was robbed in the laundry room last month. Can Paxton proceed with a negligence action against Drucilla? Duty issue : Nonfeasance context. duty issues arise. Ministerial function: (Will find duty) 1. There has been reliance on the response of the 2. the question of whether the defendant owes a duty to the π will depend on the function the government is fulfilling that gives rise to the cause of action. there is only duty established here Government Entity V. When the defendant is a governmental entity. City will probably win. Allocating Resources C. police. EXAMPLE: If the stop sign was installed incorrectly. electric company) a. She sues the city. There is a special relationship between the π and the agency or 3.g. If the π ’s injury is not personal injury or property damage. LL & Tenant Is there enough forseeability to impose duty? Yes. EXCEPTIONS: 1. If the defendant is a utility: (water . A decision that involves using judgment 2.. A. courts will find no duty. Negligent Infliction of Emotional Distress (NIED) VI. there was a prior similar incident Paxton has not won. When a government agency (e. b. Courts have refuses to impose duty beyond those who are in privity of contract to the utility. Paxton Is saying LL should prevent the conduct Special Relationship ? Yes. Public duty doctrine: a.

Have been in the zone of danger : The area i nwhich he was at risk of being physically injured. almost gets run over but jumps away. π can recover ii. Puka can recover for pain and suffering. Under MBE. Pai n and suffering are not subject to the limitations placed on claims for pure emotional distress. ALMOST PHYSICAL INJURED AND SUFFERED HEART ATTACK OF EMOTIONAL TRAUMA c. Mom and Dad both have heart attacks and sue the driver for NIED. Have suffered some accompanying physical manifestation of the emotional distress EXAMPLE: Pavi is standing on the sidewalk waiting to cross the street. EXCEPTIONS: i. and c. Dad jumps out of the way. AND b. Mom cannot recover. THERE WAS A NEAR MISS. has a lot of medical bills and her car is destroyed. (However. iv. was located near the scene of an accident. Bystander Actions: A. Direct Actions: A. A duty is owed because Pavi was in the zone of danger. if defendant has a preexisting duty to π . If ∆ negligently transmits a telegram announcing death of a loved one. suffered severe emotional distress. Emotional Distress Special rules for claims for emotional distress EXAMPLE: Dell is speeding and driving negligently. 2. Pavi has a heart attack because he was almost run over. most courts have now adopted some version of the bystander liability rule. Would have direct and bystander action.A. Flows form physical injury VII. AND a. Puka cannot work. DUTY ISSUE: BECAUSEE NATURE OF HARM IS EMOTIONLA DISTRESS. Mom not in zone of danger under MBE rule 3. IIED Elements for 3rd party recovery NIED Elements for 3rd party recovery . breaking her leg in five places. He collides with and injures Puka. Mom stopped to tie her shoe. In a minority of jurisdictions. Dab jumps the curb. She is in great pain and will walk with a limp for the rest of her life.) EXAMPLE: Mom and Dad go out for a walk with Junior. Physical harm occurs to a loved one and the π sues for his emotional distress as a result of the Injury to another. π may recover for negligent infliction of emotional distress. had a close relationship with the victim. A negligently driven car runs over and severely injures Junior. Some jurisdictions allow π s outside the zone of danger but on the scene of the injury to recover for emotional distress. Dad and Junior are holding hands and crossing the street. Some jx have eliminated the requirement of physical manifestation of emotional distress & allow πs to prevail based on a showing of severe emotional distress without accompanying physical symptoms VIII. if the ∆ negligently mishandles a corpse iii. only Dad can recover because he was in the zone of danger. 1. In most jurisdictions. b. to recover for emotional distress the π must: a. A π may recover for negligent infliction of emotional distress under a bystander theory if he a. Many jurisdictions require the bystander to have been in the zone of danger. Mom watches the events. When ∆ engages in negligent conduct π suffers emotional distress and some physical manifestation 1.

Arises where π has had a negligently performed vasectomy or other negligently administers form of birth control. this is usually a wrong answer due to the jurisdictional splits. B. AND Π suffers severe emotional distress (whether or not it results in bodily harm Theory 2 Theory 1 (direct claim) Π is within the “zone of danger” AND Theory 2: (bystander action) Π is present at the scene and witness the event Π is a close relative of the 3rd party victim AND OR Π without a special relationship must be present when conduct occurs AND Π suffers actual bodily harm ( a physical manifestation of emotional distress) Π suffers sever emotional distress AND some accompanying physical manifestation of the emotional distress OR Π suffers sever emotional distress Wrongful Conception. but may be offset by having the child III. which he π claims would have led her to not give birth to the child 2. I. Wrongful Life EXAM TIP On the MBE. Claim of parents for birth of an unhealthy child 1. EXAMPLE: Xena goes to see Dr. Cost of the birth and cost to rectify the ineffective contraceptive measure II. Wrongful birth is: A. Some courts Costs of child’s special needs after age of majority Land Possessor Liability (Last duty area)* Heavily tested* . Wrongful Birth. Wrongful conception applies where the injury is: A. commits malpractice and punctures the fetus’ lung. but now has one. Destructo for amniocentesis and Dr. Wrongful birth claims generally stem from: Physician’s failure to diagnose a disability in the fetus. Award extraordinary costs of having child with special needs. Wrongful life is: A. Child can sue Dr. because negligence is why he has a collapsed lung. but some courts will award: 3. C. Child is born with a collapsed lung. The π did not want a child. Child's action for having been born unhealthy B. Many courts do not recognize claim for wrongful birth . Damages typically involve: 1.Theory 1 Π must be present when conduct occurs to 3rd party victim Π mist be a close relative of the 3rd party victim ∆ is aware of π’s presence. Damages: a. Most courts will not award damages 1.

No purpose benefitting the ∆ or ∆ activities (2) Licensees (a) HYPOTHETICAL Delbert invites his classmate Paco to dinner at his home. such as buildings. ect C. Artificial conditions  The injury to the π derived from circumstances created by persons on the land. excavation. Activities  The injury to the plaintiff is derived from the conduct of person on the land B. A. (b) Defendant has a duty to exercise reasonable care to prevent injuries to invitees caused by activities conducted on his land. tress occurring naturallt. Natural conditions  injury to the π derived from circumstances not created by persons but existing o nthe land such as natural bodiesof water. Is Paco a licensee or an invitee? Licensee Social guest Is there Duty to warn of known concealed dangers (b) Land possessors must warn licensees of: Concelaled dnagers . Standard of care applied to owners and occupiers of land varies according to which of the three categories of danger activity were involved In the injury to the π. falling boulders.I. ect a. A licensee is: A person who enters the ∆s land with ∆ express or Implied permission. Paco is injured when his hand is cut on a piece of broken tile in Delbert’s bathroom. cultivation. Π s on the land (1) Invitees (a) An invitee is: A person who enters land with ∆ express or implied consent of land possessor There to confer potential economic benefit held open to public at large Public Invitee: Business Invitte: EXAMPLE: Shoppers in a store or patrons in a museum.

WOULD 6 YR OLD APPRECIATE DANGER? IF JUDGE APPLIES DOCTRINE CHILD IS INVITEE AND OWED DUTY. Is he licensee or trespasser. No longer an invitee. If a trespasser. (7) Minority approach: . he falls and breaks his back. Not invitee. Pablo starts walking around when one of the boards cracks. (6) child Trespassers (Attractive Nuisance Doctrine) (a) (b) If the conditions apply. Five factors: 1) 2) 3) 4) 5) Artificial condition is a Is it forseeable that children are likely to trepass where the artificial condition is located The child trespasser is unaware of the risk. If she builds a crocodile pit and hides it. Court will apply the factors. no duty to warn. even though there is a trespassing child. (5) Other duties owed by land possessors (a) Activities on the land: Injury to the π derived from the conduct or persons on the land Aritifical conditions : only for invitee does ∆ have to search out dangers. If there is naturally occurring quicksand. He is probably an invitee because he was there to confer a benefit on Dean. If there are known or frequent trespassers: Land possessor must warn of known artifical dangerous conditions EXAMPLE: Dabya knows of trespassers. licensee expeted to take property in condition ando nly has to warn about concealed dangers (b) (c) Only for an invitee does a land owner have a duty to search out dangers on the property. she must put up a warning of the dangers.(3) Trespassers (a) (b) Trespassers are: Enter land without consent of land possessor Only obligation on the land possessor is: Avoid the Infliction of willful and wanton harm (4) Status can be debatable and can change. he sues Dean. There is a duty. EXAMPLE: A Dean is having an open house for students of her law school. Duty of reasonable care Parton starts wandering around the house and ends up cutting himself on a piece of broken marble. the child will be treated like an invitee. Devin is building a new barn so there is scaffolding and construction. she does not need to warn. Dean had a duty to warn. but has Dean been reasonable? Status invitee to confer economic benefit on Dean. Pablo sues Devin. When Parton trips over a sprinkler head covered by grass and breaks his ankle. AND forseeable risk of unreasonable danger to tresspassing children Risk of danger of theartificial condition outweights utility EXAMPLE: Six-year-old Pablo is trespassing on Devin’s land. Could he have reasonably believed that he had implied consent to be in that part of the house? If a licensee.

She owes him a duty of reasonable care. Π s not on the land (but adjacent to it) (1) Artificial condition on the land: There is a duty of reasonable care (2) Natural condition on the land: No duty unless it’s a tree in an urban area EXAMPLE: Desiree builds a faux Eiffel Tower on her property. It’s artificial condition she brought to property If Pierre is blinded by a naturally occurring quicksand pit. he is not owed a duty. On a windy day. c. a piece of the tower breaks loose and hits Pierre on the head.Abolished using status and owing duty to any land entrant. MBE looks at status b. Landlords and Tenants (1) Landlords are not liable unless: (a) (b) (c) (d) A common area Negligent repairs A Known hidden dangerous condition Where LL knows T will hold prop open to public at large exercise reasonable care . Pierre sues Desiree.

She has never driven a car. Reasonably Prudent Person Under the Same or Similar Circumstances A. Jury will consider whether Delbert acted reasonably when rushing to attend to his injured child. he cannot claim emergency because he created the situation. sanity.) I. The fact that it is her first day is irrelevant.Jury must decide what level of conduct is standard B. On her first day as a licensed driver. loss of limb) c. Unreasonable conduct Physical conditions (blind.Standard of Care (OL II. We do not consider: Mental abilities. He jumps into his car and speeds to the hospital and ends up injuring Plax. Must determine what circumstances are relevant. Dolores accepts a job in LA. B. slow reflexes (3) We do take into account: (a) (b) EXAMPLE: Delbert is notified that his child was injured and taken to the hospital. EMERGENCY WILL BE OCNSIDERED AS PART OF CIRCUMSTANCES EXAMPLE: If Dorkus is driving while distracted and has to veer his car into Pompador’s Jaguar in order to avoid hitting a child. she collides with Pinky and Pinky sues. EXAMPLE: 30-year-old Dolores has lived her entire life in NYC. Child C. Reasonably prudent B. Analysis of the breach is: Failure to act as a reasonably prudent person: . Statutory neg per s:e D. Objective standard (1) (2) Defendant must rise up to the level of the average person in the community. 4 standards A. Objective standard of care: 1. takes the driving test and passes. Professionals II.Look at ∆ conduct and measure against reasonably prudent person 2.

i. Personal injury forseeable π (4) Custom evidence (a) (b) Deviation favors π . age. EXCEPTION: i. intelligence. This is helpful evidence in proving negligence if it is well-established custom designed to prevent shocks from the uninsulated wires. Compliance favors defendant. Age 6 and below B. shocking him. . and experience would have done 2. EXAMPLE: If a state legislature passes a law that says “anyone who is injured in an automobile accident and was not wearing their seatbelt cannot recover in tort. If child is not behaving as a child and neggedi n adult activity or Inherently dangerous activity treat child as adult EXAMPLE: 11-year-old Darla is driving her parents’ car and collides and injures Pava. A statute that provides for civil liability supersedes the common law of torts. A minors ∆s conduct is assessed according to what a reasonable child of the same age. Statutory and Negligence Per Se A. education. personal experience) 3. The reasonable person standard specifically takes account of age when defendant is a minor. VII. Children A. Putnick is walking across the bridge carrying a metal pole and the pole makes contact with the wires. Cannot use same judgment as adults. Darla does not get the child standard and will be held to the standard of the reasonably prudent person. Majority of jurisdictions: 1. Minority of jurisdictions: 1. Objective: Compare to other reasonable children of same age experience & intelligence ii. Subjective: Looking at child ∆ ( intelligence. EXAMPLE: Π could put on evidence that most trolley lines insulate their wires.(1) (2) (3) EXAMPLE: Dunco is a trolley company and decides to build one using uninsulated wires. VI. because she was driving a car which is an adult activity and an inherently dangerous activity. Must use above considerations to determine whether standard of care was met.” a π cannot recover in a negligence action if she was not wearing a seatbelt. when Pava sues Darla.

Dunn railroad constructs a flimsy fence between their land and Pierre’s. Minority jurisdictions regard a qualifying violation of statute by defendant as either raising a rebuttable presumption or as prima facie evidence that defendant’s conduct breached the duty to π .B. Would have been impossible EXAMPLE: Diva injures Pavarotti in a collision. Is π in class statute designed to protect 2. Statute will not be used to set the standard of care but the case proceeds under reasonable and prudent person standard of care. Stat sets standard of care Duty was she driving after dusk w/o headlights 3. EXAMPLE: State of Joy passes a statute that requires all railroads to construct secure fences between their property and neighboring property. Cow knocks the fence over and eats herself to death on the cut grass.000. When determining whether the statute should apply. Would have resulted in a harm greater than the harm produced by the violations. VIII. 4. Professionals A.” This is a criminal law. Π does not lose stat will not be used to set standard of care but case will proceed under reasonable prudent person 2. In a majority of jurisdictions.000 fine. failure to do so results in a fine up to $1. this means that an unexcused violation conclusively establishes that defendant breached his duty to π . Court will require Pavarotti to show that Diva was driving unreasonably. When the statute does not apply 1. and on the other side of the fence is Pierre’s cow. doctors. Railroad workers mow the lawn next to the fence. Dana is driving after dusk without headlights and cannot see Trachsel crossing the street and she runs over and injures him. courts will defer to the profession: B. accountants and architects. For lawyers. a judge considers: 1. OR b. ii. Medical Malpractice: (1) Custom establishes standard of care As long as doctor has complied with custom . Pavarotti wants to show that Diva was driving with an expired license and use the statute as a standard of care. Trachsel sues Dana in negligence and would prefer that the judge use the statute to set the standard of care because it limits the jury role. Situations in which the statute standard will not apply: a. Was statute designed to protect against type of harm suffered by π EXAMPLE: Legislature in the state of Panic passes a law that says “anyone driving after sundown without headlights is guilty of an infraction punishable by up to a $1. Statute is not designed to protect cows from overeating and will not apply. Negligence per se: i.

Traditionally. Doze is an anesthesiologist and administers anesthesia to Pedric. claiming that he should have divulged the risk. Reasonable patient would want to know In deciding whether to undergo a specific procedure HYPOTHETICAL Pexta decides to let Dr. In order to prevail in a legal malpractice action. Dial perform a nose job for cosmetic reasons. Pedric gets up and then falls and suffers injury. has complied with custom. Dial obligated to divulge this risk in a professional rule jurisdiction? In a patient rule jurisdiction? Bad result where there’s an inherent risk NEVER ESTABLISHES MALPRACTICE For her to recover it would have to rely on lack of Informed consent Traditional Rule : Doctor dial Is not liable because doctors customarily do not divulge the risk And complying with custom means there’s no malpractice Trend(Materiality) Patient Rule Is 5% chance of losing sense of smell material risk would patient want to know D. Dial does nothing wrong in the surgery. Dr. Pexta sues Dr. iii. Lack of informed consent: ( Form of Malpractice) i. not two hours after anesthesia. Rules for medical malpractice apply to architects. Losing sense of smell is an inherent risk of the surgery.(a) Specialists: National focus (b) General practitioners: Same or similar locality EXAMPLE: Dr. can shows that two hours are customary. Requiring doctors to disclose ALL material risks 2. for medical malpractice. Evidence shows other anesthesiologists allow patients to rest for four hours. although it is a material risk of nose jobs. will lose. Although Dr. doctors must divulge those risks that are customarily divulged. This evidence shows deviation from custom. Dial for malpractice. π must show: . Pedric loses since Dr. Pexta loses her sense of smell as a result of the surgery. After two hours. Doctors in good standing do not customarily divulge this risk. Sues Dr. If Dr. accountants and lawyers i. Was Dr. Standard of materiality: 1. Π is suing because he was not informed ii. C.

video tape of accident. Π ’s burden: Has to show prima facie by preponderance ofevidence 2. Circumstantial evidence: Evidence form which one could reasonably draw a rational inference EXAMPLE: Father bakes a cherry pie and leaves it in the kitchen to cool. He sees his daughter’s T-shirt. Only proof is the injury.) 1. (1) 3. When analyzing. This is circumstantial evidence that daughter ate the cherry pie. Just the happening of a bad result doesn’t establish any sort of unreasonable conduct on the part of the defendant. If the grapes are blackened. Direct evidence: Rare: Eye witness. Two types of evidence to show breach of duty. a large chunk is missing. An hour later. If it had not been for lawyers malpractice she would have prevailed In an underlying action Breach of Duty (OL II. she will get to the jury because the condition of the grapes are circumstantial evidence that the grapes were there long enough that the market should have discovered them and remedied the condition. No evidence from which the jury can find unreasonable conduct on the part of the market. Identify specific alleged unreasonable conduct. lips and teeth covered in red. Res ipsa loquitur (“the thing speaks for itself”) (2nd type) (a) Π meets his burden of proving breach of duty by establishing that the ∆ conduct fails to conform to the applicable standard of care. a.1. things are falling out the sky (RIL) . b. Slip-and-fall cases (first type) (a) For π to recover: Must show that ∆ was neg for failing to discover & remedy the dangerous ocndition EXAMPLE: Pru is shopping at a market when she falls on grapes and breaks her leg. there are special hurdles to deal with. C. If you cannot. When cannot figure out what ∆ did .

∆ had control π did not contribute EXAMPLE: Parm is watching DunCo’s livestock auction when a steer falls through the ceiling and into his lap. he finds a decomposed human toe. DunCo says that there is no proof of negligence on their part. Trax sues DrumBeat for negligence. but couldn’t show who or what injured him. jury can infer breach of duty if Parm can prove his portion. EXAMPLE: Π walking down the street past an apartment building and gets hit in the head by a flowerpot. He cannot show what DrumBeat did wrong. Where they are acting as group Medical team (f) Jury can draw an inference of a breach of duty. but can assert res ipsa loquitur. Sues DunCo for negligence. (d) Can be used in the context of medical malpractice. Steer falling is result of neg Dunco owns warehouse they are responsible Jury may infer breach of duty (c) Exclusive control is not required anymore: Just needs to show that probably the ∆ is responsible party EXAMPLE: Trax goes to 7-11 and buys chewing tobacco manufactured by DrumBeat. When he opens the tin. Under res ipsa loquitur. Several people worked on π while unconscious. . 1) Common Knowledge Exception: (e) Multiple defendants: 1) 2) EXAMPLE: Π goes in for an appendectomy and comes out suffering an injury to his right shoulder. Probably the result of medical malpractice.(b) Π needs to show: 1) 2) 3) The event caused the π's Injury was one which would not ordinarily occur in the absence of negligence IT Is more likely than not that it was the def's neg that was responsible for the injury-causing event. IN ORDER TO GET EVIDENCE CAN HOLD ALL ∆ JOINTLY AND SEVERABLY LIABLE UNLESS THEY CANSHOW THEY DIDN’T SHOW THE HARM. RIL:Only applies in the context of the tort of negligence and only to proving the element of breach of duty. He cannot sue all 30 tenants of the building because they are not acting as a group.

D. the π will still get all of his damages. Four areas where cause-in-fact issues arise a. City says there are 20 ways to get typhoid. If Dweezel is driving in violation of that statute. he would be negligent per se when he collides into and injures Harve. he has established cause in fact. No causal link. Facts show that Harve is driving his brand new car with a state of the art sound system and he is playing Metallica as loud as possible.)Causation Single Cause But-for Multiple Causes Substantial factor Alternative Liabilty Theory Proof 1. If the jury says there is a 75% chance the City is liable. As long as the π can show that it is more likely than not that the city was responsible. Even though Harve might be able to establish the duty owed to him was breached. Element of cause-in-fact ties def's breach of duty to π's Injury w/o this π loses claim EXAMPLE: Jurisdiction has a law that all motorists must honk horns when they are driving on curvy roads to alert oncoming traffic. more likely than not. Can Pashra maintain an action against DunCo? What did Dunco do? Theres no specific unreasonable conduct Beef falling is sign of negligence Walking by dunco meat storage warehouse dunco probably was In control pashra was just walking not contributing to her Injury Cause-in-fact (Actual Cause) (OL II. sewage line is called the Holly line. The line that has the drinking water is called the Hemlock line. Stubbs contracts typhoid. It is likely that Harve would not have heard the honk anyway. Harve would not have been injured. .” But for Dweezel’s failure to honk.wrong answer UNLESS proving element of BREACH for NEGLIGENCE HYPOTHETICAL Pashra is injured when a side of beef falls from the sky and hits her on the head. But for his failure to honk horn more likely than not harve would have been Injured a. he might lost his negligence claim because to establish causation. But for test single causes 2. Multiple causes (1) Multiple defendants. Π only has to show: More likely than not "but for" nge would have been Injured EXAMPLE: Rochester mixed potable water line with sewage line. the general test if “but for. defendant and act of nature etc. All Pashra can show is that she was walking by DunCo’s Meat Storage Warehouse when this occurred.

Doctor commits malpractice and fails to diagnose cancer. Must use substantial factor test. Child runs out and causes him to spill it on himself. If Parthenon sues Abel. They both shoot in the direction of the bush and end up shooting Summers. he cannot show but for his fire. Alternative liability theory (Summers v. If Doctor had made a timely diagnosis. Its 50/50 cannot meet preponderance threshold (1) Factors for application: (a) (b) (c) (2) Small number of ∆s Each of whom is negligent All before the court( Have been sued) If factors met burden shifts to ∆ that they were not the cause IF ∆ cannot show that the were not the cause they are jointly and severable liable . it is incurable. Only one of the two hunters is responsible for the harm but Summers cannot show who it is. his house would not have been destroyed because Xena’s fire would have done the same. Tice) * most likely to be tested* EXAMPLE: Tice and Simonson are hunting when they hear a rattling of the bush. Cannot use but for or substantial factor test. They combine and destroy the house. but canot show morel ikely than not doctor malpractice she would have lived Tested rarely typically medical malpractice cases EXAMPLE: Paulina goes to see Doctor. Loss of chance (1) Traditional application Paulina will lose even if he did deviate from custom. of ∆ at issue EXAMPLE: Landlord failed to provide hot water. (2) Many jurisdictions recharacterize the injury: (a) Plaintif needs to show but for his malpractice she would have loss 40% chnce of survival. Both landlord and child would be but-for causes. Π heats water on the stove and carries it to the bath.(2) Substantial factor test: Was neg. (b) On MBE unless told otherwise assume joint and several liability: 1) b. Paulina will lose because she cannot show more likely than not but for Doctor’s malpractice she would have survived. Paulina sues Doctor. Xena also sets a fire that would by itself burn down the mansion. It by itself would burn down Parthenon’s mansion worth $1M. Already had a 60% chance of death. there would have been a 40% chance that Paulina could survive but by the time it is discovered. She will not be treated as she will recover c. (a) Must use where: EXAMPLE: Abel negligently sets a fire.

The foreseeable injury would be ingesting the rat poison. F. breaking it and causing $20. Unforeseeable manner of harm *most tsted* . but Porter suffers $100. and that he acted unreasonably. If ∆ conduct is substantial factor In bringing about harm. Someone may eat the rat poison thinking it’s a spice 3. Smashes into chandelier. Can sue all who might have cause harm in proportion to their market share Court uses several liability: EXAMPLE: Company A had 10% of relevant market. will pay 10% of the π ’s damages unless it can show that it could not have made the product that caused the π ’s harm. Unforeseeable type of harm a. b.000 worth of harm. Defendant says most people drive old Toyotas worth $15. This will not hold. E. Eggshell Skull Rule: ∆ liable for full consequences of π's injury. Duane is on the hook for the full extent of the injury. Normally $100 worth of harm. Unforeseeable extent of harm: a.000.000 worth of damage. not $100.000. Use a rule of foreseeability or the risk rule: Look at what makes ∆ conduct unreasonable and then ask is the injury suffered by plaintiff the type of harm that would be suffered by negligent conduct EXAMPLE: Dom negligently leaves a jar of rat poison next to the stove with all of the other spices. Market share liability: *not tested heavily* (1) (2) Generic product(DES cases) cannot show whichh of a large group of ∆ is responsible for the harm. he fact that the ∆ neither foresaw nor should have foreseen the extent of harm does not prevent him from being liable EXAMPLE: Della is driving negligently and collides with and totals Pompadour’s Jaguar. Dom’s lawyer could argue that even though Dom owed a duty to Prissy.) In adition to being cause-In-fact of π's harm. She will pay $15. or legal cause of injury 3 Contexts in which they arise Unforeseeable extent of harm 1. the ∆s conduct must also be a proximate . Proximate (Legal) Cause (OL II.d. Take your victim as you find them Unforeseeable type of harm Unforeseeable manner of harm EXAMPLE: If Porter had a predisposition for brittle bone disease and Duane collides with him. Prissy is using the stove and the heat from the stove interacts with the rat poison in a way that the jar heats up and becomes a missile. this is not the foreseeable type of injury.000 suffered. 2.

The manner that the harm came about is so unforseeable a. NOT FORESEEABLE THAT AN X-WIFE WOULD KILL HIM HOWEVER. Subsequent negligent conduct is generally not so unforeseeable that it cuts off liability.000 worth of harm. Doctor is liable. HYPOTHETICAL Dana negligently operates her auto and strikes Porter. Too freakish. it will not be superseding because the harm was foreseeable based on the risk of the defendant. whose leg is broken from the accident. and will cut off liability. is injured by a car that ends up on the worksite. goes into surgery and because Doctor commits malpractice. there is an earthquake that causes the roof to collapse. c. he suffers an extra $100. DunCo and Xena will not be liable. Is Dana liable for Porter’s head injury? . Porter. While he is being treated for his broken leg. EXAMPLE: DunCo is a construction company. Superseding Cause: breaks the chain of causation b. injuring the worker. IN ACTUAL CASE XENA FIALED TO TAKE MEDICINE AND RUNS OVER PARKER EXAMPLE: Parker is taken to the hospital. both DunCo and Xena are both causes-infact. is taken to a nearby hospital. Type of harm you can foresee is a car driving onto the site. unexpected and bizarre. a worker. Even though there was intervening criminal conduct. Culpability: The more cupable it is the more likely it is to be superseding EXAMPLE: Dora negligently fails to provide adequate locks on the front door of the apartment building. injuring him. DunCo would successfully argue that they were not the proximate cause because Xena is a superseding cause. A section of the roof strikes Porter on the head. they have a worksite that does not have a barricade or flaggers to control traffic in the area. She intentionally runs him over. (1) Look for passage of time the longer time has gone by the more likely liabilty wil be cut off. Pav is injured when he is mugged in the laundry room. causing a concussion. The facts show that the car is being driven by Xena. Probably negligent per se because Parker. Sues Dora claiming she owed him a duty. who is the ex-wife of Parker. EXAMPLE: If Doctor decides to intentionally chop of Parker’s leg when he is in surgery following the accident. Will be liable as proximate cause. In violation of statute.

Unforeseeable acts of God. Designed to return π ot pre-injury position . The π was not planning to breed or show the dog. (1) (2) EXAMPLE: Vet negligently neuters a dog against the π ’s wishes. Criminal acts and intentional torts or torts of third parties. Chain of proximate causation broken. but only where they are unforeseeable under the facts or circumstances. including all illnesses and injuries resulting from π ’s weakened condition. so the π suffered no injury. Subsequent disease or accident. FORESEEABLE UNFORESEEABLE (I. but not deadly. F. rare diseases. There must be a cognizable injury.E. Typical Examples Subsequent medical malpractice. as viewed by the court. Compensatory damages a. 2. and punitive damages are NOT allowed.We don’t know in this hypohetical. Damages (OL II. Highly extraordinary harm arising from defendant’s conduct. original defendant’s liability cut off for consequences of antecedent conduct. A π must affirmatively prove ACTUAL DAMAGES. Court will not allow the π to recover because this is not a cognizable injury. SUPERSEDING) Effect Chain of proximate causation unbroken. including aggravation of π ’s condition.) I. Negligent rescue efforts.. original defendant remains liable. Nominal damages are not available . including grossly negligent conduct of third parties. a.

Π is entitled d. even where they cover all or part of the harm for which ∆ is liable.. lost wages.b. (1) Due process clause limits amount of punitive damage awards if they are more than 10% of compensatory damages . we must speculate as to what his lost wages would have been for the rest of his life. Avoidable Consequences Rule (to be discussed in more detail under “Defenses”): Π must take reasonable steps in order to mitigate damages 3. present. malicious Often called exemplary damages. wanton.ect) are not credited against tortfeasor liability. Medical expenses. Three rules: (1) (2) (3) They have to be foreseeable the type of damage has to be Reasonably certain: cannot be speculative Damages are not unavoidable c. Punitive Damages *NC DISTINCTION* a. willful. Applies to gratuitous services (free nursing care) π entitled to recover services even if they wee provided for free (2) General damages: Pain and suffereing.. ect. Π entitled to recover for special damages for past. (a) Collateral Source Rule: Unless told otherwise it applies on MBE Payments made to or benefits conferred on the injured party from other sources (insurance policy. Never recoverable just for negligent conduct. Defendant has to be more culpable than negligent. Two categories (1) Special damages: Easier to measure. and future special damages Reduce future damages for present value EXAMPLE: If a four-year-old child is injured in a way that will not allow them to work ever again. Wealth of defendant is highly relevant. union. more tangible. destruction of π's car. (1) b. (1) c.

(2) .

He Is negligent because he was moving too fast B: Not unreasonable to stand by tree no evidence to suggest it is C: Correct : discusses proximate cause issue D: There is causation . Frank’s snowmobile still runs. the driver of the other snowmobile. Hans. new snow.BAR EXAM APPLICATION Question 3 Frank received a new snowmobile for Christmas. While Hans waits for Frank to return. The first week of January. so he goes for help while Hans stays behind with his damaged snowmobile. C) that the falling tree branch was an intervening and superseding force. Frank’s best defense would be A) that he was not negligent. His snowmobile crashes into the other snowmobile. A: Not best choice Is WRONG based on facts. He swerves to avoid the other snowmobile but loses control. The branch falls and hits Hans. Frank decides to take his new snowmobile out for a spin. D) that his negligent conduct was not the actual cause of Hans’s injuries. a snow storm drops a foot of new snow in the mountains. B) that Hans was negligent in standing near a tree with snow-laden branches. If Hans sues Frank for these injuries. but his snowmobile has been rendered inoperable. causing Hans to break his collar-bone and left arm. Fortunately. is not injured. He is moving much too fast when he comes over a rise and sees another snowmobile directly in front of him. a large branch of a nearby tree snaps under the weight of the heavy.

m. when he hit a pedestrian. because the defendant failed to act reasonably under the circumstances. One Tuesday. to 6 a. The pedestrian has sued the defendant on a negligence cause of action. B) The pedestrian will prevail.m. the defendant. because the defendant violated the ordinance by driving through the city center at 5:30 a. was speeding through the Metropolis city center at 5:30 a.m.. because the defendant did not know about the ordinance. who is a resident of another city. D) The pedestrian will not prevail because the local ordinance will not establish the standard of care. on Tuesdays. on a Tuesday. the Metropolis city council passed an ordinance barring motorized vehicles from driving through the city center from 5 a. The defendant did not know about the ordinance. C) The pedestrian will not prevail. Neg per se Doctrine A: Not Correct: for the stat ot apply the π has to bei nprotected class & right type of harm B: CORRECT: Stat will not set standard care not harm its designed ot protect against so it defaults to reaosnably prudent person C: Irrelevant they are supposed to know the law D:No the harm .m. What is the most likely result? A) The pedestrian will prevail.BAR EXAM APPLICATION Question 4 In order to facilitate street cleaning.

Defenses to NEgligence .

If π is 40% at fault. under contributory negligence. The determination the legal effect of the π ’s contributory negligence depends on the jurisdiction. c. Comparative Negligence Assumption of risk Contributory Negligence and Comparative Fault a.Defenses to Negligence (OL II. the fact that Perfection was 1% at fault would bar recovery. Defendant has the burden of proof to show that: Π was the harm of plaintiffs harm b. Comparative Fault: Joint & severa liability survives. 1) Pure comparative fault: ALWAYS APPLIES ON MBE The π is allowed to recover no matter how much at fault he is but his recovery is reduced by his fault Joint & several liability EXAMPLE: If π is 80% at fault and suffers $100. G. 2) Modified comparative fault: Where he π is at much or more at fault than the π is not entitled to recovery EXAMPLE: If π is 60% at fault. (c) The last clear chance doctrine is generally going to be the wrong answer. π will recover $20. the π would recover 60% of her damages. If there are multiple ∆ each of who injure the ∆ and the π is also negligent. they will be barred from recovery. Onlt applies I ncontext of contributory negligence. Assumption of Risk . (1) (a) Under contributory negligence: Any fault on part of π is a bar to recovery EXAMPLE: If Perfection was deemed 1% at fault and Diablo 99% of fault and Perfection sues Diablo.000 from negligent defendant.000 worth of damages. (b) Comparative fault reduces the π ’s recovery.) Contributory Negligence I. Subract π’s fault and that π can sue on ∆ 2.

HYPOTHETICAL As a condition of entry to ski at Dun’s Ski Lodge. in a moment of spite. Mary slips on the ice and breaks her leg. sprays down a section of snow to make it icy while performing her duties as a slope groomer. but there would be comparative fault. Express assumption of the risk arises where: Where π through written or oral relieves ∆ of responsibility to be non-negligent. Π may also impliedly assume the risk. Dickens crashes the car and Plato is injured. There would be no assumption of the risk. Dickens smells of alcohol and there is tequila in the car. There would be cont neg and comp fault. Because the reasonably prudent person would be deemed sober d. Has she assumed the risk of her injury? Π would be entitled to recovery because the conduct of ∆ is more than just negligent. EXAMPLE: Both Dickens and Plato are intoxicated. Defenses only apply to negligence “moment of spite” goes beyond negligence If assumption of risk applies than π gets nothing b. Professional rescuers (Firefighter Rule): Where the π prof rescuer is injured in doing her job due to inherent risk of that job she will not recover in neg . notwithstanding her supervisor’s repeated warnings to her not to do so. This would be relevant to Plato’s assumption of the risk. white water rafting) Only applies to negligence (1) Void against public policy when dealing with a necessity.a. Based on plaintiff conduct (1) Π is barred from recovery or recovery is reduced under the assumption of the risk doctrine if defendant establishes that: (a) (b) (c) Knowledge of danger Appreciation of danger Voluntarily subjected to danger EXAMPLE: Plato gets in the car with Dickens. Marion Dun. c. Mary signs a waiver stating that she will relieve Dun of negligence liability. Dickens can argue that Plato elected to get into a car with a drunk driver and assumed the risk. (snow boarding. Assumption of the risk is a subjective focus while contributory negligence and comparative fault is an objective focus.

courts would say that an inherent risk is that another player might be negligent. causing $10. she will not be allowed to recover because she assumed the risk since it is part of her job. π has obligation to take reasonable steps after injury not to increase injury EXAMPLE: Drew negligently injures Polly.against the person who created the need for her to do her job EXAMPLE: Dorkus is smoking in bed and falls asleep and his house catches on fire. If ∆ Is more than neg (intentional or reckless) than π can recover 3. under primary assumption of the risk. Francine Firefighter suffers smoke inhalation when fighting the fire and sues Dorkus for negligence.000. Primary assumption of the risk: Courts hold that in contexts ∆ has no obligation ot act non-neg towad π EXAMPLE: Paxton decides to play basketball and gets tripped and injured by Duncan.000 worth of damages but Polly refuses to seek medical help and her damages go from $10. you have relieved Duncan of the duty to be non-negligent. Often arises where: . Drew can say he does not owe the extra $90. b. e.000 to $100. In agreeing to play. Under the rule. If Paxton sues Duncan.000. Avoidable consequences: a.

BAR EXAM APPLICATION

Question 5

Crossing a busy street at night, a walker failed to look before crossing and failed to use a clearly marked crosswalk 50 feet away. The place where the walker crossed should have been brightly lit, but it was dark. The local county, where the walker was crossing, negligently failed to replace a street light despite several notifications from local citizens. While crossing, the walker was struck by a driver, who was exceeding the speed limit. The walker sued the driver and the county in the state of X, where the accident occurred. The state of X has a pure comparative negligence statute and provides both for joint and several liability of joint tortfeasors and for contribution among joint tortfeasors based upon comparative fault. The jury has determined that the walker suffered $200,000 in damages. It also determined that the walker was 40 percent at fault, the county was 10 percent at fault, and the driver was 50 percent at fault. What is the amount of damages for which the county is liable? A) Nothing, because the walker was more negligent than the county. B) $20,000, because the county was 10 percent negligent. C) $120,000, but the county can collect $100,000 from the driver if it pays the entire amount. D) $120,000, but the county can collect $60,000 from the driver if it pays the entire amount. Damages reduced by π fault 200k x .40 120k Π can sue 1 ∆ and recover all the remaining amount county can if it wants seek contribution from driver

BAR EXAM APPLICATION

Question 6

One winter morning, Jan needed to get to the airport, so she called a cab. Due to the ice on the roads, traffic was terrible. With less than an hour before her flight, Jan offered Carl the cab driver an additional $50 if he would “find some way to speed up and get her to the airport.” Carl began to weave in and out of traffic. Carl lost control of the cab and crashed into another car. Dan, a pedestrian, saw the accident and attempted to help. As Dan was attempting to help Carl out of the cab, Dan slipped and broke his leg. Did Carl owe Dan a duty of care? A) Yes, Dan, as a rescuer was owed an independent duty of care. B) Yes, because it was foreseeable that Dan could be injured. C) No, because Dan assumed the risk of injury when he attempted the rescue. D) No, because Dan’s negligence will bar his claim. DANGER INVITES RESCUE. GOOD SAMARATIN SHOULD RECOVER FOR HARM SUFFERED FORM NEGLIGENT PARTY DUTY OWEED TO RESCUE C & D WRONG: NOT GOING TO FIND GOOD DEED DOERS OF ASSUMING RISK NOT NEG ON PART OF PAT

III. STRICT LIABILITY
Possession of animals A. Definition (OL III. A.) Π can recover absent proof of fault B. Categories (OL III. B.) 1. Possession of animals a. Wild Animal Rule: Abnormally dangerous actives Products liability

If ∆ keeps wild animal & the π is injured because animal does something that is characteristic of animal keeper of animal is strictly liale EXAMPLE: Damian has a pet tiger. Has always been gentle, but Paxton is visiting and the tiger bites off his hand. No matter how unforeseeable, Damian is liable. b. Domestic Pet Rule:

Absent a a statute imposing strict liability. C/L the keeper of domesticated pet is not liable unless keeper knows or should know of the animals dangerous propensities

2.

Abnormally dangerous activities a. An activity is abnormally dangerous when: There is an inevitable high risk of serious harm Not a common activity EXAMPLE: Blasting or dynamite, crop dusting, transporting toxic waste, fumigating. b. Π can recover when: ∆ was involved in one of the abnormally dangerous activites ∆ caused the π ‘s harm (1) Proximate cause issue: Intervening forces that superceed to cut of liability. The π has to be injured by risk that makes activity abnormally dangerous. EXAMPLE: Nemo is blasting and the noise freaks out the minks on Pierre’s mink farm to the point that the mother minks start to eat their kittens. Pierre is upset and sues Nemo and says strict liability. Although Nemo was blasting, this is dangerous because it causes debris and destruction, not because it causes minks to eat their kittens. Not abnormally dangerous. Pierre can only recover upon proof of fault.

HYPOTHETICAL Dinah Mite, an explosives dealer, accidentally drops a pallet of boxes containing explosives on Patella, breaking her leg and pinning her to the ground. Accident investigators on the scene later that day are injured when one of the destabilized explosives detonates. Is Dinah potentially subject to strict liability for Patella’s injury? For the accident investigators? Patella Cannot recover. Explosives explode not that they drop n her leg. Patella can recover upon proof of fault. The investigators can recover because the explosives exploded. Might be a question of assumption of risk

3. Products liability

C. Defenses (OL III. C.)

1.

Contributory Negligence a. MBE Rule: Where ∆ is strictly liable the π conduct( contributory or comparative) is not a defense. EXCEPTION: The only thing that is a defense is when π assumes the risk

EXAMPLE: Parm is driving on the highway and he is listening to the radio when he sees a sign that says “Danger: Blasting—Turn off your radio” that Dynaco had posted. Parm did not turn off his radio. There is an explosion and he sues Dynaco in strict liability. They can assert a defense that he knew of the danger. If Parm were speeding and did not see the sign, he gets full recovery. UNBER MBE RULE IF PARM WAS SPEEDING AND DID NOT SEE SIGN HE GTS FULL REOVERY BECAUSE HE DID NOT ASUSME RISK AND DID NOT KNOW OF DANGER, COMPRHEND O, OR EXPOSE HIMSELF HE JUST ACTED UNREAOSNABLY AND WOULD OCNSITUTE A DEFEMSE FOR ABNORMALLY DNGEROUS ACTIVIES

Not in business of dealing with those goods. Placido can sue DiceCo in strict products liability. Arlene lends it to her neighbor Brian. No requirement of purchase. Valente chooses a perm manufactured by DunCo and applies it to Prudence. Placido suffers injury due to a defect. Product predominates valente can be proper ∆ Service predominates because dentist takes sskill and needle is secondary . As a user. Focus is on: Condition of the product. or contractual relationship. If service predominates π has to prove fault and strict liability to does not apply EXAMPLE: Prudence goes into defendant’s beauty salon and wants a perm. Strict Products Liability in Tort (OL IV. she can sue DiceCo as well. A. Prudence goes bald and sues Valente in strict liability. by stander suffering physical injury. Proper Defendant *most tested aspect of strict liability* (1) Any one who is in marketing chain and in business of dealing with product. Court says that the product predominates and Valente can be a proper defendant in strict products liability. Proper π (1) Any user. b. strict products liability. ect This does not include: Occasional seller EXAMPLE: If Duncan sells a chainsaw at a garage sale and Placido is injured. c. (a) (b) This includes: Manufacturer. EXAMPLE: Arlene buys a chainsaw manufactured by DiceCo. a. Legal theories: negligence. A. There are eight elements of strict products liability. If his wife is injured as a bystander. Duncan cannot be sued. He lends it to Placido. Proper Context for Strict Products Liability (1) (2) Providers of service are not held strictly liable for injuries received by customers When there is both a service and a product: If product predominates strict liability can be brought by π. privity.)*Tested MOST* 1. consumer. NOT the conduct of the ∆ but the condition of product ∆ put in market 2. breach of warranty. wholesaler. Different from a dentist using a defective needle to administer Novocain. but an area of tort liability where the π is injured due to product related harm.Products liability NOTE This is not the name of a tort. retailer.

b) Π must show that: The product is more dangerous than ordinary consumer would expect when using its in intended manner Not in condition of intended by manufacture Defect existed at time ∆ put product in marketing chain 2) Design defects a) Entire product line is claimed to be defective. Pon would haveto show the risk by placing gas tank whre it was in that type of metal outweighs the utility of placing gas tank iusing that type fo metal and would haveto show an alternative design. Proper defendant. . product. Comes out as manufacturer intended but π claims that design is defective EXAMPLE: Ford Pinto. is it more dangerous than consumer expect ( no expection of kind of metal). π . dealing with car(product). Π loses under this approach. Riskutility balancing—must show risk of placing gas tank outweighs utility and that there is some reasonable alternative design. Defect *most important* (1) Almost all jurisdictions impose strict liability where a product is “in a defective condition unreasonably dangerous. b) Ordinary Consumer Expectation Test: Π can argues that product is more dangerous than consumer would expect when using it in its intended manner EXAMPLE: Π is injured when he is at his workplace using safety goggles.d. Ordinary consumer would not expect side protection. but it was still faulty. it would explode upon minor collision. Stallion explodes and Pon is severely injured. Due to the placement of the gas tank. Ford designed the car this way. but not the side. Π is welding and a piece of metal flies into his eye. The goggles only protect the front. Death trap made care.” (a) Formulations of liability occur under three categories of defects: 1) Manufacturing Defect a) Product comes out in condition not intended by manufacturer EXAMPLE: Toe in the chewing tobacco. encased in light metal. Sues for a design defect. saying that it should have protected the side. def(ALL stallions had gas tanks) design defect. Pon buys a Stallion and is driving when he is rear-ended at 5 mph. Designed to be lightweight and fuel efficient and places the gas tank in a location. Pon user of product. c) Risk-Utility Balancing Test: Plaintiff can show product is defective by showing the risk of the product as designed is greater than the utility of the product as designed i) A product’s design is usually defective under this test if: EXAMPLE: Death Trap Motors decides to market a car called the Stallion.

e. buys it. Proximate Cause (1) Look for supeceeding causes. She is injured and sues the manufacturer. uses it and suffers a stroke. Pharmacy discovers the mixture and calls the manufacturer and alerts them.Death trap could assert the beefit to fuel efficiency and benefit migh outweigh the risk. Conduct of pharmacy knowing defect and selling is unforeseeable where it would constitute proximate casue (2) Learned Intermediary Doctrine: In manufacturer provides warning to doctor that manufacture can expect that warning will be passed to patient and if dotor does not than dotor is superseeedingi cause . placement size of font EXAMPLE: DunCo manufactures rat poison and it puts on the product a skull and crossbones and it says “Danger—Keep Out of Reach of Children. Trying to keep children away ii) Lack of warning b. Plashawn is shopping at Target. gravity and probability of harm. eats it and dies. There is a risk of stroke in people with high blood pressure who use this product. makes an OTC weight loss medication called Weight-Off. Does reasonably inform reader of significant risks b. Cause-in-Fact (1) But for defect π wouldn’t have been injured. In people who have high blood pressure who use their product. Language. The pharmacy’s act is superseding cause. Parmette comes in and buys the mixture. To the extent market share liability arises f. EXAMPLE: Rat Probe Inc. Manufacturer has to warn of risks it knows or should know b. such as 3rd party discovering the defect EXAMPLE: Manufacturer mixes gasoline and kerosene and sells to a pharmacy. Can sue Rat Probe and Target if he can show that Rat Probe knew or should have known that there was this risk. All prescription drugs are exempt unless manufactured differently EXAMPLES: Vaccines. Some jx. prescription drugs 3) Absence of Warnings(warning defects) a) A π is asserting either: i) Adequacy of warning b.” Child thinks it is pirate food. Warning could be made better. Jury would have to decide d) Some products are exempt from being found defective in design under strict products liability under Comment K:(402(20a Some products have extraordinary social utility and no alternatives.

one morning. there may be diesgn or manufacturing defect. Breach of warranty. The chair collapses under her. there is no misuse. it is foreseeable that a person would stand on a chair. no recovery. (2) Alteration . Only remebdy is through contrat.g. and thus. Plaintiffi snot entitled to recover dmages due to misues EXAMPLE: Parva stands on a chair manufactured by DunCo to reach a pot in her kitchen. Because of the defect.000. strict products liability and warranty. defenses (1) Misuse (a) Π uses product I manner hati s neither intended nor foreseeable. Paco cannot get the truck to start and thus is unable to make his scheduled deliveries. He cannot bring action because only harm is to the product itself with subsequent economic loses. Misuse. product not defective. Wrestling in Jello is not the intended use of the product. A foreeseeabe use maybe not an ineneded use isto stand on it EXAMPLE: Π contracts a rash after Jello wrestling and sues. Damages (1) May be recovered when: Personal injury And property other than product itself (2) Where the harm is only to the product itself: Onlyy claim available to π is breach of warranty. If truck sarted sparking and caused $50 of burn damge o garage paco can bring ation in negligence. While sitting is the intended use of a chair. Because he OTHE damage to other than product itself h. May Paco pursue a strict product liability action? No. Cannot pursue neg claim or liability claim where harm is to the product itself HYPOTHETICAL DunCo sells a defective truck to Paco. causing him to lose $10.

Dumont can assert assumption of risk. to his own injury reduces recovery. If he did not see the smoke and sparks. no assumption of risk.(a) 3rd pary unforeseeably changes product usually employers remove safety devices from machine there is no liabily (3) Assumption of the Risk (a) Π wrongful conduct that contributes along with defective product . No assumption risk he is entitled to full recovery if he did not see the smoke . Pan is watching TV and it is the final moments of the final episode of American Idol. Pan sues. Pan sees that the TV is smoking and sparking. EXAMPLE: Dumont manufactures a TV. but refuses to turn it off. TV explodes and burns a carpet and the sofa.

which considers the product rather than the person. Can be disclaimed. 2. Any foreseeable π is entitled to bring an action. Defenses (p. a. Negligence defenses apply. B. No contractual relationship needed Analyze the conduct of each defendant and ask whether it was reasonable. I nany transaction of goods the merchants sttes its fit for its intended use There are privity and notice requirements. Differentiate from strict products liability. Product Liability on a Negligence Theory (OL IV.B. 4. 329) . Duma tells Xaviera that the knife she is buying is rust-proof. An implied warranty a. He can sue Duma for breach of express warranty. Warranty of Merchantability (1) (2) (3) 3. the only claim a π can pursue is a claim for breach of warranty. EXAMPLE: At a garage sale. Applies ot merchants. Assumption of risk ∆ acted unreasonably ALWAYS wrong answer under strict liability. C. 2. Where the harm is to the product itself. An express warranty exists where: The ∆ makes specific representation as to quality of a product that becomes basis of bargain.) 2nd cause of action 1. It ends up rusting and her husband is injured. Res ipsa loquitur takes the place of a manufacturing defect in negligence theory. Products Liability on a Warranty Theory (OL IV. Focus on conduct and ask if it was reasonable 3.) 3rd claim breach of warranty 1. C.

so that he can maintain his reputation in the industry. and as he makes his first turn onto a busy street. Mitchell personally supervises the assembly line eight hours a day to ensure quality. because it sold the bike exactly as it received it. the grandson of the founder of A-One. They fall off when anyone over 150 pounds sits on them. A-One sells its bicycles through the retailer. B) Phister should not prevail against A-One. Mitchell. takes great pride in the quality of A-One’s bicycles. regardless of whether A-One or Bike Components introduced the defect. Which of the following is true? A) Phister cannot recover against Bike Mart.BAR EXAM APPLICATION Question 7 A-One Bicycles has been making the best bicycles around for three generations. D) Phister should not prevail against Bike Mart but should prevail against A-One. because it exercised due care and the faulty bike seat was Bike Components’ fault. among others. Despite Mitchell’s careful inspections. Bike Mart. Anythign that talks about reasonableness is wrong (B) neg language C: Anyone who is part of the marketing chain is a proper ∆ . Phister takes the bike out for a spin. Phister sues Bike Mart and A-One in strict product liability. C) Phister should prevail against A-One. Phister falls in front of oncoming traffic and is severely injured. Mitchell is unaware that the bicycle seats that he gets from Bike Components Unlimited are having problems. the seat falls off. because A-One manufactured the bicycle. Phister buys an A-One bike from his local Bike Mart.

if Marlin failed to exercise the appropriate standard of care in confining the bears. a tiger. he says. he discovers that the brown bears have somehow managed to escape. C) prevail under a theory of strict liability. Marlin. but only if Potter did not provoke the bears in any way.” If Potter sues Marlin for the damage to his beehives caused by the bears. His beehives are some distance from his house but visible from his kitchen window. While Potter is speaking to Marlin. One day. Ranch residents include a lion. Marlin attempts to provide the appropriate habitat for each type of animal.BAR EXAM APPLICATION Question 8 Marlin owns a ranch on which he takes care of animals that have been retired from show business. “Uh. . to his dismay. The first neighbor he calls is Potter. he chances to look out the window just in time to see two bears flattening his prized beehives. and two brown bears. he will most likely A) prevail. After a slight pause. I know where your bears are. Potter keeps bees on his land to produce honey. much like a zoo. D) prevail if he can demonstrate that he was not negligent in the maintenance of his beehives. who owns a ranch directly to the west of Marlin’s. Marlin immediately begins telephoning the owners of the properties adjoining his ranch to warn them about the escaped bears. B) prevail.

b. Typically brought by a government actor such as an Attorney General. (1) (2) (3) (4) (5) Value of ∆ activity Alternatives Nature of locality Extent of π’s injury Who was there first . Petasha. Creates a huge traffic problem. the wind will blow the smell towards a housing community that was constructed nearby. Private Nuisance * tested more* a. This would be a public nuisance. who lives there. (1) To recover damages in an individual action for a public nuisance: If suffered a type of injury distinct from what the public suffers EXAMPLE: Disney is going to place a billboard on a country street. There are five factors to consider when determining whether a nuisance is a substantial and unreasonable interference. 2. If DunCo doesn’t shut down the feedlot. Mental state: Usually intentional conduct EXAMPLE: DunCo owns a feedlot in the desert that smells. EXAMPLE: Panda runs a nursing home and those who live there cannot sleep due to the constant music. Is nuisance IS substantial unreasonable interference  If π is irrantiaonly sensitive there will not be a nuisance c. The sign has bright lights and plays the song “It’s a Small World” over and over.NUISANCE PUBLIC NUISANCE PRIVATE NUISANCE Types of Nuisance 1. Public Nuisance a. A public nuisance is: Unreasonable interference with the health. A private nuisance is: Substantial and unreasonable interference of π use and enjoyment of land. and moral of the community b. safety. is revolted and asks DunCo to do something about it. they are engaging in intentional conduct. On certain days.

Injunction (1) To get an injunction.EXAMPLE: DunCo’s feedlot was there first. . how can they minimize the harm? How significant is the injury? 3. the π must persuade a judge that: (a) (b) (2) That she is suffering or will suffer irreparable harm That damages are an adequate remedy A judge must do a balancing of the equities to determine whether the π is entitled to equitable relief. Remedies a. How valued is their activity? Where else can they go.

DEFAMATION I. Tsted along with invasion of privacy usually In analyzing an action for defamation. If it says that it believes that week-old vegetables are used in the food. Defamatory message II. Where the π is not named. A. For a defamation action: (OL VI. EXAMPLE: If an article says that one of the surviving Beatles has been arrested for dealing crack cocaine. but other facts may make it so. A. 1. Paul and Ringo can both bring an action for defamation. there can be no defamation claim. even though it is couched in opinion language. Lowers a π in the esteem of the community or discourages 3rd persons from associating with him.) A. D. This is opinion and cannot be defamatory. 2. C. EXAMPLE: If the Nazi party paper publishes an article that says Prussia thinks that Hitler was a horrible person and Prussia is a proud neo-Nazi. 2. Pleading problems 1. they must allege that it is of or concerning her. 2. every member can bring a claim. There is false reputation harm causing speech. If its hyperbole Pure opinion is not defamatory EXAMPLE: Law school paper says that the food in the student center has gone from bad to worse. it can be proven true or false. 3. A message is defamatory if it: A. The statement must be one which can be believed to be truthful and reputation-harming. a. Professor Padding can sue that it is of and concerning her because she is the only female torts professor and people will associate her with the statement. A large group cannot be defamed. EXAMPLE: Accusing someone of a heinous crime or of cheating on an exam. one must check for: (OL VI. such as the dean already being married. This is not defamatory on its face. In a small group. (usually over 20 too big) EXAMPLE: Article is published saying that today’s lawyers are unethical.VI. 3.) 1. Must be defamatory in the eyes of a reputable group. EXAMPLE: Acme Law School dean is marrying Jane Doe. the court will not uphold this as defamation. greedy swine. EXAMPLE: Law school paper publishes an article saying that the female torts professor has been arrested for bank robbery. Publication*Tested a lot because answer cannot be intuited* . Some statements may not be defamatory on its face.

Dina was not negligent nor did she intend for someone other than π to read letter. Will Paykta be successful in a defamation action for the letter? for the postcard? No publication. very nosy roommate.1. Dina sends a postcard to Paykta containing the same accusation. Someone other than the π read . Traditional rule Reputational harm is presumed and damages do not have to be proved. Republication Rule: a. The following week. States π is unfit to perform in his trade or profession 2. Π must show: a. Libel definition: a. Sealed letter  it was unforeseeable that nosey roommate would open letter. Have to prove special damages specific economic losses that flow from defamation c. The letter is opened by Paykta’s new. Pakta cannot recover damages When dina sends the postcard ther IS publication she may not have intended someone other than π she was negligent in creating the risk that someone other than π would read the postcard 3. Falsely stating someone has a current loathsome disease 4. Publication means: a. Crime of moral turpitude 3. photograph b. C/L any communication that has permanence writing. For π s to recover for defamation: 1. Exceptions are called slander per se: Does not have to prove special damages and treat it as libel 1. saw. accusing her of plotting a murder. heard the defamation 2. Oral defamation/Spoken. Type of defamation and damages 1. sculpture. Lack of chastity in a woman . C/L spoken defamation was less harmful b. 2. Anyone who repeats defamation becomes republished and potentially liable for defamation 4. The ∆ either intentionally publish info or was negligent as to pblication HYPOTHETICAL Dina sends a sealed letter to Paykta. Slander definition: a.

Truth a. Privilege ends if someone repeats the defamatory statement in a non-privileged situation. EXAMPLE: If X gets a call about a job reference for student A. Historically:Falsity was presumed and truth was a defense b. Qualified Privilege a. Defendant loses an otherwise available qualified privilege if: i. no liability. Canno be loss even if motive was bad by ∆ b. If applies ∆ is not liable for defamation no matter how bad ∆ is. Qualified privilege applies because the information is of interest to a third person. Reckless in truth of falsity b. Knows info is false iii. Contexts in which absolute privilege applies: i. Gives greater leeway to speech. Statements in Judicial proceedings EXAMPLE: Congressman Doofus stands up on the floor of the legislature and says “people. . Doofus goes to office and calls someone then the absolute privilege will not apply 3. Bad intent ii. statements on floor of legislature iii. who are child molesters should be in jail. A sues X for defamation. EXAMPLE: On cross-examination of a witness. communication between spouses ii. Absolute privilege applies. like my opponent in my last race.” Absolute privilege applies. but X gives a horrible recommendation because he is thinking of student B. c.5. Today:Π has to prove falsity as part of prima facie case 2. high ranking executive officials iv. no liability. attorney asks the witness if they are still a member of the Nazi party. Common law Privileges 1. but qualified because they can be lost. Absolute Privilege a. but the privilege is lost if X is negligent or reckless as to the truth of the information or if the information is published. i.

Public official: Defamation related to π in their capacity ∆ knew info was false or recklessly disregarded truth or falsity Clear and convincing evidence of actual malice HYPOTHETICAL The Daily falsely states in an article that Mayor Pacher has been embezzling funds. who had proved to be reliable. They based this on a source they had used before.Since NY Times v.Prior to 1964. Constitutional Issues 1st amend issues of free speech 1. Subject matter (public concern or private concern) c. Private figure: Look at subject matter. Damages π seeks d. there was no First Amendment issue defamation and defamation was a strict liability tort. four questions are considered: When dealing with public officials a. content. (1) Public concern: The more widely disseminated the information and to the degree there is a media ∆ more likely its public concern . private b. His conduct may have been negligent but is NOT actual malice Cannot establish clear and convincing evidence of actual malice d. Public figure: Treated as officials to recover: Clear and convincing evidence of actual malice (1) (2) All purpose public figures: Considered household names Limited public figures: Inject themselves in a particular controversy and try to have some effect on outcome e. Form. What’s the status of π ( public official. Sullivan. figure. Will Pacher be able to recover for defamation? No because there is no evidencethat ∆ entertained doubts as to truth or falsity did not question nor did they know it was false.6. and context. Status of ∆ 3. 2.

Π does not haveto prove actual malice to get punitive damages. Actual malice is not constitutionally required . Clear and convingng evidene of actual malice (2) Private concern: Only shared with private people.Willing to prove reputational harm (actual damages) can setan standard of fault as long as it does not impose strict liability (a) Presumed or punitive damages: Actual malice is required.

Not granted to enjoin defamatory speech since it is false. Commercial Appropriation of Identity or Likeness (OL VII. C. Something visible in public is not a ground for intrusion. Paco sues Sports Today and Drek. Wants to publish an article about baseball star Paco and sends a writer to interview him. 2. c. Drek uses the picture to start an ad campaign.) 1. Takes a picture in which Paco is holding a can of Drek soda. A. b.VII. B. . Something in past. d. decades have past Need some sort of publication or dissemination of information. Disclosure of Private facts Disclosure of which is highly offensive to reasonable person Not newsworhty Look for the passage of time. Intrusion into Seclusion (OL VII. Injunction might be possible since the information is truthful. Does not require any publication of information. Π must prove four elements: a. Public Disclosure of Private True Facts (OL VII. 3.) 1. a.) 1. 4. stalking. Invasion must be done in a way that is: Offensive to reasonable person EXAMPLE: Eavesdropping. 2. Unauthorized use of π’s identity or likeness for ∆ commercial advantage a. Damages recoverable for invasion of seclusion include: Emotional distress punitive damages if an show ∆ is bad enough B. C. b. ∆ intentionally interferes with plaintiff zone of privacy a. The wrongful use of π ’s identity or likeness must be used: for profit and not a news worthy purpose EXAMPLE: Duncan is the editor of Sports Today magazine. wiretapping. Paco will lose against Sports Today but will win his suit against Drek. INVASION OF PRIVACY A.

Only issue they are no private facts since he shared with some members offmaily . Portrayal in a False Light (OL VII. If ∆ gets info from pub record cannot be liable HYPOTHETICAL Paul. c. Does Paul have a cause of action against his brother? Ones medical information is considered highly private. In an effort to bring HIV-positive individuals to the public’s attention. his brother sends an e-mail to all of Paul’s colleagues revealing his HIV status. Constitutional issues: a.) 1. b. is HIV-positive. Π has to show: a. Paul would prevail lsince only a FEW family members know this information D. d. 2. Only a few family members know of his condition.5. D. but argument that communication is or shouldn’t be defamatory EXAMPLE: Stating falsely that someone has cancer or is poor. Publication False information Divulging info is highly offensive to reasonable person Some level of fault (1) Parallel to defamation rules. a highly respected Washington lawyer. . Looks like defamation .

IF SHE WAS NEGLIGENT . because there was no publication. B) No. Gerry approached Marcia. I’ve admired your work for some time. because only Marcia and Gerry were parties to the conversation. “I will never work with you. if it was reasonably foreseeable that the comment would be overheard by someone. The conference is held at different sites each year. Both Gerry and Marcia attended the annual conference of the country’s largest association of criminal defense attorneys. D: LAYS OUT PROPER RULE. I’m opening an office in your state. D) Yes.” Marcia replied. if Marcia knew the comment would be overheard. C) Yes. Will Gerry succeed in a defamation suit against Marcia? A) No.BAR EXAM APPLICATION Question 9 Gerry and Marcia were both trial attorneys. Although Gerry and Marcia have never met. At a reception held during the conference. they are familiar with one another professionally. Perhaps we could pool our resources and become the most powerful attorneys in the state. “Marcia. Gerry said. specializing in criminal defense.” Several other lawyers who happened to be nearby overheard Marcia’s reply. You’re an unethical low-life. and attorneys gather to discuss the latest developments in criminal law.

there is an absulte privlege becaue statement was made on floor of legislature . Two days after the story broke. while engaged in a filibuster began reading the lead stories from newspapers all across the nation. had recently been treated for chronic alcoholism in an inpatient clinic affiliated with Gotham’s largest hospital. because he was privileged to make the statements. C) Meld will win. if he reasonably relied on the newspaper article. Blutarsky is an outspoken supporter of Meld’s main rival for the party’s nomination. a billionaire real estate developer and casino mogul who was considering running for President. 1st --> Prove clear & conving evidence of actual malice C: WRONG ANSWER B: While its true π will have to prove actual malice. Senator John Blutarsky. the highest ranking elected official in Meld’s party. including the Meld article from the Tattler. Meld had undergone a series of cosmetic procedures in order to enhance his chances of winning his party’s nomination and. reported that Daniel Meld.BAR EXAM APPLICATION Question 10 The Gotham Daily Tattler. In fact. What is the likely result if Meld sues Blutarsky for defamation? A) Blutarsky will win. because the statement was slander per se. if can prove actual malice. B) Blutarsky will win. ultimately. D) Meld will win. the presidency. a tabloid newspaper.

so he wants to pull it off the market. Malicious Prosecution (OL VIII. B. B. He reads about a bank robbery. she can bring an action against Dilbert for malicious prosecution. Abuse of Process (OL VIII. If she is tried and acquitted.) 1. Abuse of process exists where: ∆ intentionally misuses civil or crim process for ulterior motive that results in damage to π. Wrongful Institution of Civil Proceedings (OL VIII.VIII. calls the police and tells them that Petunia did it. The real reason he does it is that he knows someone else wants to buy it. ∆ doesn’t have subjective belief in truth of what theyre claiming EXAMPLE: Dilbert is angry with ex-girlfriend Petunia.) 1. Malicious prosecution arises when: Arises when someone who is not part of the court system or law enforcement with improper motive or probable cause gets a criminal proceeding brought against π & π prevails on the merits . . WRONGFUL INSTITUTION OF LEGAL PROCEEDINGS A. Π does not have to prevail EXAMPLE: Dim attaches a piece of real property that belongs to Pushta. Instead of criminal action a civil action is being instituted for improper motives and knowing there is no basis to do so C. Claims he does it in order to preserve it in order to pay off a judgment. C. A.) 1.

but if Dinah accidentally looked at the wrong invoice. ECONOMIC TORTS A. B.) 1. then they would be entitled to recover for economic losses that flow from that. Failure to disclose information is not a basis unless: (1) (2) (3) (4) (5) Fiduciary relationship ∆ makes ambiguous or misleading statement that causes reliance ∆ makes stamtent believing true than learning its not ∆ makes statement not intending reliance but learns π is relying if π reasonably expects there to be disclosure 3. Porter sues for fraud. She might be negligent.) 1. Π must prove four elements: a. Mental state: a. If plaintiff injury is purely economic π cannot prevail in negligence claim EXAMPLE: DunCo deals with dangerous chemicals and starts a chemical fire. they notify π to evacuate. b. B. c. ∆ must intend that π rely b. Intentional material misrepresentation of Past or present fact made with scienter  of which π justifiably relies Generally an affirmative assertion of fact or an act of concealment. PERSONAL INJURY OR PROPERTY DAMAGE . Π sues DunCo and loses. Intentional Misrepresentation (Fraud) (OL IX. 2. A. a. he would lose his fraud claim because there is no scienter.IX. Negligent Misrepresentation (OL IX. Π loses $1M in business because they had to be shut down. If the fire had damaged π ’s building. d. General rule: ∆ has no duty to avoid the neg infliction or pure economic loss. Clearly she intended him to rely. To prevent harm to businesses in the area. Scienter is present when: ∆ knows info is false or is reckless as to truth or falsity EXAMPLE: Dinah tells Porter that the corn that she is selling him is Grade A when it is Grade B.

C. b. b. to sell all of their widgets. They knew that Xavier has a contract with Portie Co. Accounting firm does its job negligently and misstates the value of the company that hires the accounting firm. Portie will win if they sue DinCo. a duty is owed.) 1. Interference with Contractual Relations (OL IX. There is a fiduciary duty. 2. ∆ knew of the prospective economic advantage Acted to interfere with it for improper motives 3. If ∆ knows they are acting for benefit of 3rd party and 3rd party relies and suffers economic loss they can recover for economic losses EXAMPLE: If Xerox hires Deloitte to do an audit because Xerox wants to get a $10M loan to fund a new product line. 2.) 1.A. D. In the context of lawyer/client relationships: Non clients can recover. Interference with Prospective Economic Advantage (OL IX. If the hiring company suffers harm as a result. who lends Xerox $10M. D. wants to sue Deloitte when Xerox goes bankrupt. they can recover. Two elements: a. This tort protects the probable “expectancy” interests of future contractual relations of a party. and says that they want a kind of widget. DinCo says they will pay Xavier 3 times the amount Portie is paying and Xavier agrees. EXCEPTION: Where there is special relationship EXAMPLE: A lawyer prepares a contract for a client and drafts it negligently so that the client loses $1M and the client sues for malpractice. b. ∆ knows there is a contract between π and 3rd party ∆ acts with purpose to have K breached or harder to perform EXAMPLE: DinCo approaches Xavier Co. Acting to protect competitive interest is fine because there’s no contract HYPOTHETICAL . First National Bank. Who beyond a party who is in privity of contract can recover? a. In the context of will drafting C. Because Deloitte knew they were auditing to benefit the banks in town and they could see the reliance. Deloitte is negligent and overstates the value of Xerox. the lawyer cannot avoid liability because it is purely an economic loss. Π can prevail only by showing that the defendant: a.

Owen knows that they do. they could recover for injurious falsehood. Injurious Falsehood (Trade Disparagement) (OL IX. ∆ knew state was false . They lost business. c. Deena starts a rumor that Paul is unreliable and lied about being admitted to the bar. Π must prove: a. Will he have a cause of action against Deena for interference with prospective advantage? E. Owen. Concerned that Paul will beat her out for the job. b. Paul does not get the job. False statement Actual malice  knew statement was false or recklessly disregard truth or falsity made to another causing specific economic injury to π EXAMPLE: Owner of Music Company. d. Deena learns that her main competitor for the job is Paul. If Parker finds out. E. but does not want to give them business and says no.Deena really wants to get a job as an associate at a large Washington law firm. Owen says no and Connie asks if Parker Records does.) 1. From a friend of hers at the firm. is approached by Connie who asks if they have the Barry Manilow/Lady Gaga duets.

employer held vicariously liable because employee tortious conduct within scope of employment EXAMPLE: Vinny is driving a van for Domino’s. uses own tools. Employers can seek indemnity from employee but rarely do so. Independent Contractor a. 2. where. b. If π died during lawsuit the action died with them Survival Statutes: a. Not vicariously liable of torts of their children absent statutebut can be negligent supervision or negligent entrustment B. By virtue of being an employer. Bar owner could be vicariously liable even though it was an intentional tort. they are vicariously liable. the person who hires IC is NOT VICARIOUSLY LIABLE for negligence of IC Whether a person is an independent contractor rather than an employee depends on: employer dictates meas method and manner. giving tools. MISCELLANEOUS TORT CONCEPTS A. makes own schedule then negligence does NOT lead to vicarious liability of employer 3. c. Vinny is negligent in scope of employment and Palethia can sue Domino’s. Parent/Child a. A. when. EXAMPLE: If Domino’s hired Vinny when they knew that he was a bad driver or failed to do adequate background checks.) 1. Drives negligently and collides with Palethia. Abatement/Survival of Action and Wrongful Death (OL X. C. 2. Employers can be directly liable if they are negligent in hiring. Intentional torts committed by an employee: Are outsideof scope of employment and eployern ot vicariously liable (1) EXCEPTION: Employee believes acting to benefit employer EXAMPLE: Bouncer at a bar commits a battery when ejecting an unruly patron. The more control exercised by person who hires them.X. More likely that person is employee.) 1. . Common law: a. they will be directly liable. Vicarious Liability (OL X. Employer/Employee (Respondeat Superior) a. The less control exercise. b. d.

3. Wrongful Death Statutes: a. the estate can continue his claim through a survival statute. children) to bring action for wrongful death for THEIR OWN injury 4. . is in the hospital for six months and then dies from the injuries. Allow statutory heirs (sib. His wife can bring an action for loss of consortium for the six months he was in the hospital. suing for own injuries suffered. He has a wife and minor child. Tortfeasor has seriously injured a spouse the other spouse may bring a claim for loss of consortium EXAMPLE: Deirdre is driving negligently and she hits and severely injures Poindexter. Once Poindexter has died. Loss of Consortium: a. his wife and child can both bring a claim for wrongful death. Once he dies. parent. He is in great pain.

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