TORTS

Checklist for every torts question:
Who is the plaintiff?
Who is the defendant/who are the defendants? Who are the responsible parties?
What is the plaintiff’s injury or injuries?
What legal theory/theories can the plaintiff assert?
Make sure that it is a torts question
I. INTENTIONAL TORTS
A. Elements of Intentional Torts !"# $ %&
' Voluntary Act
a (efinition:
EXAMPLE: $f )o* pushes (irk into +riscilla and +riscilla sues (irk, there is no liability for an intentional
tort because (irk did not engage in any voluntary act
EXAMPLE: (ina, during a sudden epileptic sei-ure, hits +oinde.ter While (ina did not intend the har*,
there is also no liability because there was no voluntary act by (ina
/ Intent
a 0or *ost intentional torts, intent is established if the defendant either:
!'&
!/&
1 Causation
a
b +ro.i*ate cause in intentional torts:
23%M )$+
4 Harm
a Varies based on the ind of intentional tort.
b !ays to establish harm in intentional torts:
!'&
!/&
5 "o Pri#ile$e or %efense
H&P'THETICAL
(ell sees his archrival +ratt walking across the street %lthough (ell thinks it’s unlikely he can throw
a stone that far, (ell picks up a nearby stone and throws it at +ratt 6as (ell acted with
purpose/intent such that he *ay be found liable for tortious conduct?
H&P'THETICAL
(arla, due to boredo*, decides to shoot her 77 gun into a passing co**uter train 8he doesn’t
want to hurt anyone, but knows that the trains at that hour will be packed with passengers 8he
shoots her gun at a full passenger car passing by her, hitting +la. 6as (arla acted with intent such
that she *ay be found liable for tortious conduct?
H&P'THETICAL
8i.9year9old 7rian (ailey pulls a chair out fro* where he knows Mrs :arrett is sitting $f 7rian knew
that it was substantially certain that this would cause Mrs :arrett to fall to the ground, has he acted
with intent?
H&P'THETICAL
(elbert is late for his )orts class Without looking where he is going, he runs out of the library and
collides with +arker 6as (elbert acted with intent?
(. (attery !"# $ 7&
' % battery arises where:
a 2le*ents:
!'&
!/&
!1&
/ )o establish intent, plaintiff has to show either:
a
b
c 7e sure to distinguish intent fro* *otive
EXAMPLE: +ete co*es into bar review and sits ne.t to (awn and says ;*y neck is killing *e< (awn
says that he has decided to learn how to beco*e a chiropractor and offers to help +ete refuses but
(awn grabs his neck and pulls Whether +ete feels better or not, it is a battery and (awn had intent
d Transferred Intent
!'&
EXAMPLE: (orkus throw a rock at 3avier, but the rock *isses 3avier and hits +o*pador instead
+o*pador sues (orkus, and (orkus would be liable because he intended to co**it a battery on
3avier
e Incom)etency
!'&
EXAMPLE: (olores shoots +atty because she thinks +atty is 6itler (olores is liable for battery not
withstanding her insane delusion because she had purpose to cause contact
1 )he har*ful or offensive contact ele*ent is satisfied if:
EXAMPLE: +unching %rnold 8chwar-enegger would be enough to constitute battery, even if he is not injured
a %ny contact that would be offensive to a reasonable person is enough for battery
EXAMPLE: +rissy hates to be touched and believes that when people touch her, they are trying to pass
alien beings into her body (ale taps her on the shoulder and asks her for the ti*e +rissy freaks out and
sues (ale for battery (ale was trying to touch her, but it was not har*ful or offensive to a reasonable
person
!'& $f defendant knows the particular susceptibility of the plaintiff:
b $t is sufficient for a battery if defendant causes a contact with so*ething close to plaintiff
EXAMPLE: Workers at a workplace found the coffee to be increasingly unpleasant )hey hid ca*eras
and found out that a colleague was urinating into the coffee urn )his would be battery
c =nlike assault, plaintiff need not be aware of the contact
EXAMPLE: $f +atsy falls asleep and while she is asleep, 7arney kisses her on the forehead +atsy finds
out the ne.t day and sues for battery 8he would be able to recover
4 +rivileges and (efenses
a
C. Assault !"# $ C&
' %n assault arises where:
a 2le*ents:
!'&
!/&
!1&
/ )o prove intent, defendant *ust:
a
b
c )ransferred intent often arises with:
EXAMPLE: (une wants to scare +i*, so she throws a knife towards +i* but it ends up stabbing hi* in
his leg (une intended to co**it assault but there is also a clai* for battery $ntent for assault satisfies
intent for battery
EXAMPLE: 7eavis has been harassing (onny at school (onny decides that he wants to end this so he
will scare 7eavis into not picking on hi* (onny finds his father’s loaded =-i and brings it to school with
the intent si*ply to scare 7eavis (onny accidentally pulls the trigger just as +recious co*es walking out
and gets hit in the right ar* 7eavis can sue for assault +recious can bring an action for battery
1 >easonable apprehension:
E*am)le: 8app worked at a clock repair store Mrs 6ill co*es into the store and finds 8app drunk Mrs 6ill
inquires about getting her clock fi.ed 8app reaches toward Mrs 6ill and asks to pet her and fi. her clock
8he sues for assault $ssue was about how wide the counter was because it deter*ined whether Mrs 6ill
could have a reasonable apprehension of a battery
4 $**inence:
EXAMPLE: $f (racula says he will co*e back to*orrow to suck your blood, it is not an assault
5 #ook for ele*ents that negate intent
? @ou often have assault and battery together
EXAMPLE: )hrowing a water balloon at so*eone creates the reasonable apprehension of a battery !assault&
and then being struck by the balloon is the actual battery
a @ou can have one without the other
EXAMPLE: 7attery without assault:
EXAMPLE: 8leeping plaintiff is never in apprehension but suffered a battery
EXAMPLE: %ssault without battery:
EXAMPLE: Aear9*iss case
B Words alone rarely create an assault
EXAMPLE: +arker is walking down a deserted alley and heard a voice saying that they have a gun pointed at
his head )his is enough for an assault even though it was co**itted by words
C Must be an intentional threat of an i**inent battery
EXAMPLE: (o* and +at are studying together for the bar e.a* (o* notices that +at has put together
checklists and diagra*s for herself and wants to borrow it +at says no, (o* gets *ad and grabs her cat and
holds it over the balcony, threatening to drop the cat unless +at gives hi* her outlines +at sues (o* for
assault )his is not an assault or battery
%. +alse Im)risonment !"# $ (&
' 0alse i*prison*ent arises where:
a 2le*ents:
!'&
!/&
!1&
!4&
/ (efendant has the requisite intent for false i*prison*ent if he:
a
b
c Motive is irrelevant
EXAMPLE: )arget e*ployees are e.cited for their holiday party %fter the store closes, they will go out
%t D p*, without checking to see if anyone is in the changing roo*s, so*eone locks up the store and
+atina gets locked in all night and sues for false i*prison*ent 8he would lose because she could not
prove intent
1 Confine*ent:
a Ao duration of confine*ent is required:
b Confine*ent generally occurs by:
!'& )hreats of reputational har* are generally insufficient
EXAMPLE: (avid tells +ablo that if he leaves his roo*, (avid will tell the world that +ablo is a
virgin +ablo stays in for a *onth and then sues (avid for false i*prison*ent Ao confine*ent can
be found because this was a threat of reputational har*
c $f plaintiff knows of a reasonable *eans of escape:
EXAMPLE: $f there is an open window on the first floor and the plaintiff knows about it, there is no
confine*ent
$f there is an open window on the third floor and plaintiff would have to ju*p and risk injury, this is not a
reasonable *eans of escape
!'& >isk of e*barrass*ent is not a reasonable *eans of escape
EXAMPLE: 8tuart takes all of 8usan’s clothes and leaves her in the *iddle of the woods 7ecause
8usan does not have a *eans of escape, 8tuart has falsely i*prisoned her
4 %gainst the plaintiff’s will:
EXAMPLE: +la.is is apprehended by an undercover store detective 6e is taken to a back roo* to call the
police +la.is says he will wait for the police and then threatens to sue for false i*prison*ent but cannot
because he has consented to the confine*ent
5 6ar* or da*ages:
a $f the plaintiff is aware she is being confined:
b $f the plaintiff is not aware that she is being confined:
EXAMPLE: $f during a lecture, all of the doors in the roo* were locked but students did not try to leave,
there is no false i*prison*ent $f one person tries and cannot get out, there is a false i*prison*ent
clai*
EXAMPLE: $f a baby is locked in a roo*, the baby probably does not know of the confine*ent $f there
was so*e sort of physical har*, there would be a clai* "therwise, no false i*prison*ent
H&P'THETICAL
(elbert quickly locks +rofessor #ongwinded’s classroo* door during a )orts class, unlocking the
roo* an hour later at the end of class 2very student is so engrossed in the lecture that nobody tries
to leave the roo* during the class $s (elbert liable for false i*prison*ent?
? 0alse arrest:
E. Intentional Infliction of Emotional %istress !"# $ 2&
' $ntentional infliction of e*otional distress arises where:
a 2le*ents:
!'&
!/&
!1&
!4&
/ Mental 8tate:
(efendant *ust act with intent to cause severe *ental distress or be reckless in creating the risk of e*otional
distress
a $ntentional:
!'&
!/&
b >ecklessness:
EXAMPLE: (ora had an ongoing feud with +avala (ora calls +avala, disguises her voice and says ;this
is :eneral 6ospital @our child has just been rushed to the e*ergency roo*< +avala suffers severe
e*otional distress (ora has the intent for $$2( $t was her goal to cause e*otional distress and knew it
was virtually certain
EXAMPLE: (ora is at the hospital and walks by the desk where people check in and overhears a
discussion and thinks that one of the nurses is saying that +avala’s child has been rushed to the
e*ergency roo* (ora calls +avala )his would suffice for $$2( because it would be a for* of
recklessness
c Ao transferred intent doctrine, but:
EXAMPLE: (on stabs +aul’s father in front of +aul $f (on knows that +aul is there and knows that his victi*
is +aul’s father and +aul suffers e*otional distress, +aul could recover against (on for $$2( not because of
transferred intent, but because (on was reckless
1 )he ele*ent of e.tre*e and outrageous conduct is satisfied if:
a "ffensive or insulting language is generally not considered outrageous
EXAMPLE: (elilah, in front of everyone, says that +aula’s dress is cheap and ugly +aula is hu*iliated
and has a heart attack fro* e*barrass*ent and sues for $$2( +aula would lose
7 EXCEPTI'",:
!'&
!/&
EXAMPLE: (ratt knows that +on is superstitious and releases black cats onto his property and
sends hi* shattered *irrors )his would generally be tolerated, but since (ratt acted to e.ploit
+on’s susceptibility, it would be considered $$2(
!1&
4 Causation issue that *ight arise:
5 8evere e*otional distress
a +laintiff does not have to prove:
b +laintiff si*ply has to prove:
+. Tres)ass to Land !"# $ 0&
' )respass to land is:
a 2le*ents:
!'&
!/&
!1&
/ )o establish intent, plaintiff needs to show that:
a
b
EXAMPLE: $rene is driving around and gets lost in an unknown area 8he sees (ennis standing on the
sidewalk $rene pulls over and asks (ennis for directions to the freeway entrance (ennis says to take
his dirt road to the end, and *ake a left +roperty doesn’t belong to (ennis, but to +rince who has
hidden ca*eras 0inds $rene and sues her for trespass +rince will recover because $rene intended to
enter that land and (ennis intended to get $rene to enter the land
c Mistake is not a defense as to a trespass action
1 When a person is trespassing, they are liable for the full e.tent of their har*
EXAMPLE: $rene is driving carefully across the dirt road, hits a pothole and loses control 8he hits an a-alea
bush worth E'5,FFF 8he is liable for this destruction because it occurred while she was trespassing
4 2ntry:
EXAMPLE: (arla fires a gun across +entiu*’s property )his constitutes trespass because the bullet crossed
the property of the plaintiff
5 +laintiff’s land:
a
EXAMPLE: (arla thinks she is crop dusting her own land but the pesticide lands on "wen’s land 6e
has leased the property to )o* )o* can bring a trespass to land action because he is in possession of
the land $f per*anent da*age occurred, the owner would have a clai*
? >e*edies
a )hree types of re*edies in tort:
!'&
!a&
!/&
!a&
!1&
!a&
b )respass to land:
!'&
!/&
!1&
!a&
!b&
-. Tres)ass to Chattels !"# $ :&
' )respass to chattels arises where:
a 2le*ents:
!'&
!/&
!1&
!4&
/ $ntent is satisfied when:
EXAMPLE: (ale is leaving a restaurant and takes a blue deni* #evi’s jacket, believing it is his but it is really
+aul’s )his is sufficient to create intent for trespass to chattels
1 Conduct giving rise to trespass to chattels:
4 6ar*:
EXAMPLE: Geeping the jacket for five *inutes is not significant enough Geeping the jacket for a week would
be and +aul would likely be able to recover the rental value of the jacket
EXAMPLE: +a* and (e.tra are at +a*’s apart*ent )hey are playing a ga*e where every ti*e
;foreseeability< co*es up, they do a shot of tequila "nce they finish the first bottle, +a* says she will go to
the store to get *ore +a*’s dog is in the backyard and +a* tells (e.tra not to let the dog in the house or
touch the dog +a* co*es back to find (e.tra holding the dog and sues for trespass to chattels $f the dog is
not har*ed, there is no case
a >e*edies:
!'&
!/&
H. Con#ersion !"# $ 6&
' Conversion arises where:
a 2le*ents:
!'&
!/&
!1&
/ $ntent:
EXAMPLE: (ale takes +aul’s jacket and loses it 8ued for conversion $s liable 6ad the purpose to e.ercise
do*inion and control over the jacket and by losing it, there is a serious and substantial interference (ale
would have to pay fair *arket value
1 7ona fide purchaser for value
EXAMPLE: Cruella steals +rissy’s Ming vase worth E',FFF,FFF Cruella sells the vase to (rake, who pays
fair *arket value +rissy can sue Cruella for conversion $f +rissy cannot find Cruella, (rake is a converter as
well and can be sued 2ither has to pay E',FFF,FFF to +rissy or return the vase
4 >e*edies and da*ages
a )ypical re*edy is forced sale:
b >eplevin:
)>28+%88 )" C6%))2#8 C"AH2>8$"A
$ntentional tort $ntentional tort
Co**itted by intentionally dispossessing or
inter*eddling with a chattel in the
possession of another
Co**itted by intentionally e.ercising do*inion or
control over a chattel and seriously interfering with
the rights of the owner
(efendant is liable for da*age or di*inished
value of chattel
(efendant is liable for the full value of the chattel
at the ti*e of the conversion
I. %efenses and Pri#ile$es to Intentional Torts !"# $ $&
>e*e*ber +"+C%A8
Privilege
'thers
Property
Consent
Authority
"ecessity
,elf9defense
' Consent
a $f the plaintiff does consent:
b +laintiff can *anifest consent e.pressly, by i*plication, or as a *atter of law
!'& E*)ress consent e.ists where:
EXAMPLE: +rofessor is concerned about his weight and needs to stop eating )winkies )ells class
that if they see hi* eating a )winkie, do whatever it takes to stop hi* 8tudent grabs his ar* and
pulls the )winkie away, professor sues for battery Would lose, gave e.press consent
23%M
)$+

!a& #i*itation:
!/& $*plied consent arises where:
EXAMPLE: 3 plays pickup basketball (uring the ga*e, an opposing player trips hi* and causes
hi* to injure his leg 2ven if done intentionally, 3 had i*pliedly consented by agreeing to play
!a& #i*itation:
!b& 8tandard is:
EXAMPLE: +olly is in line for a vaccination but does not know this "ffers her ar* and
receives an injection +olly sues for battery, but there was i*plied consent >easonable to
believe consent had been given
c Mistake can vitiate consent when:
EXAMPLE: (ale is about to beco*e inti*ate with +enny when +enny asks if he has herpes (ale,
knowing he does, lies and denies it and then sleeps with +enny +enny gets herpes and sues (ale Will
not be dee*ed to have consented
$f +enny is a prostitute and they engage in se.ual relations and (ale pays +enny with a counterfeit bill,
there is still consent because the counterfeit bill is a collateral *atter
H&P'THETICAL
7illy Club asks 6i*a )oh*a if he can hit her with his new baseball bat 6i*a responds, ;8ureIyou
can’t swing that foa* bat hard enough to hurt *e anyway< 7illy, knowing that the bat is, in fact,
*ade of wood, swings and hits 6i*a Can 7illy clai* the defense of consent for the battery?
/ ,elf.%efense
a %rises where:
!'& (efendant only need be reasonable and *ust respond with proportionate force
b "nce the threat is over:
EXAMPLE: (onna and +aula e.changed harsh words +aula says ;wait until the ne.t ti*e $ see you
alone $ a* going to teach you a lesson< (onna is alone in a parking lot that night when she sees +aula
walking towards her with so*ething in her hand (onna picks up a stone and throws it and hits +aula,
causing injury +aula sues for battery (onna intended contact but argues self9defense based on the
earlier threat 2ven if +aula was only carrying a fishing pole as an apology gift, if (onna believed she
was threatened, she can respond accordingly
c )he force used *ust be proportionate to the threat:
!'&
!/& >etreat:
!a&
!b&
H&P'THETICAL
(ylan sees +ercy approaching hi* in a bar, with a baseball bat poised to strike hi* 7elieving that
+ercy intends to hurt hi*, (ylan wrestles +ercy to the ground $s (ylan still privileged to defend
hi*self if it turns out that +ercy was not actually intending to hurt (ylan?
1 %efense of 'thers
a
EXAMPLE: $gor overheard the threat that +aula *ade to (onna (onna is in the parking lot when $gor
sees +aula walking towards (onna $gor picks up a stone, throws it and hits +aula +aula sues for
battery $gor could successfully assert defense of others because he reasonably believed that (onna
was at risk of i**inent har* and responded with proportionate force
4 %efense of Pro)erty
a
b % defendant *ay never use deadly force to protect personal or real property
!'&
c "ne *ay use reasonable force to eject a trespasser fro* personal property after asking the* to leave
d >ecapture of chattels:
EXAMPLE: (ale took +aul’s jacket +aul saw it and asked for it back (ale takes off with the jacket +aul
can chase (ale and use reasonable force to get it back
5 "ecessity
a
b +ublic necessity:
EXAMPLE: 2arthquake starts a fire in the city and to stop the fire, (evilla dyna*ites +a.ton’s ho*e to
stop the spread of the fire +a.ton sues for conversion and trespass to land +a.ton would lose )he
greater good was trying to stop the fire
!'& Could raise 0ifth %*end*ent takings issues
c +rivate necessity:
EXAMPLE: (e*ora is out on the water in a s*all boat loaded down with i*portant cargo when a stor*
arrives (e*ora takes her boat and ties it to +rince’s dock notwithstanding the ;Ao )respassing< signs
(e*ora could assert this defense
!'& (efendant will be liable for any har* caused during the e.ercise of the privilege
H&P'THETICAL
(ev is boating on a lake when his *otor boat springs a leak Concerned that he will sink and drown,
(ev *otors to the nearest dock, which belong to +aulo (ev ties his boat to +aulo’s dock and walks
across +aulo’s land in search of help )he boat da*ages the dock while *oored there $s (ev liable
to +aulo for trespass? for the da*age to the dock?
? Authority
a Arrest
!'& 0elony:
!/& Misde*eanor:
!1& +rivate individuals:
b ,ho)ee)er/s Pri#ile$e
!'&
EXAMPLE: (rug Co has an undercover detective who sees +a.ton shopping on a hot day in a
long heavy coat 6e believes he saw +a.ton put so*ething into the pocket of the coat :rabs and
detains hi* until the police deter*ine that he did not take anything (epends on length and *anner
of detain*ent
c %isci)line
!'&
BAR EXAM APPLICATION
Juestion '
(avid’s neighbor, Kack, is a *usician and practices with his tru*pet every day, late into the night "ne day, (avid saw
Kack at the local grocery store 0rustrated by the a*ount of noise co*ing fro* Kack’s house every night, (avid
approached Kack fro* behind and yelled, ;$f you don’t stop playing the tru*pet, one day $ a* going to kill you<
=nknown to (avid, Kack was wearing the earplugs he wore to perfor* live and did not even know that (avid was
speaking to hi*
(is*ayed by Kack’s apparent indifference, (avid telephoned Kack and repeated the threat Kack was shocked to
discover his neighbor disliked his *usic, and quickly apologi-ed )hat night Kack went to bed early and did not practice
his tru*pet
$n a cause of action against (avid for assault, Kack will
%& prevail, if the reason he refrained fro* practicing his tru*pet was fear of retribution fro* (avid
7& prevail, because he was upset by the telephone call and (avid should reasonably have known that he would
be
C& not prevail, because he was unaware of (avid’s state*ents in the store
(& not prevail, because (avid said ;one day $ a* going to kill you<
BAR EXAM APPLICATION
Juestion /
#arry, the owner of a s*all bookstore, is very concerned about a recent wave of shoplifters wearing sweatshirts with
large pockets and sneaking books out in the pockets
)wo days after the *ost recent shoplifting incident, on a particularly war* day, )i* entered #arry’s bookstore wearing a
sweatshirt si*ilar to those worn by the shoplifters #arry noticed )i*’s sweatshirt and watched hi* spend over an hour
slowly *oving through the various book stacks 2.pecting the worst, #arry *oved a large heavy book cart in front of the
front door, and called the police station to report a shoplifter
)i* eventually *oved to the cash register to pay for his selection of books %fter paying for his books, )i* discovered
his e.it was blocked by the book cart 8hortly thereafter, the police arrived and asked )i* to e*pty his pockets )i* did
not have anything in his sweatshirt pockets
)i*’s cause of action for false i*prison*ent will
%& fail, because the shopkeeper’s privilege will prevent the cause of action
7& fail, because )i* was not har*ed by the confine*ent
C& succeed, because )i* was aware of the confine*ent
(& succeed, because )i* was not in fact a shoplifter
II. NEGLIGENCE
A. Introduction
' 0ra*e the ele*ents as follows
a (uty:
b 8tandard of Care:
c 7reach of (uty:
d Cause in 0act:
e +ro.i*ate Cause:
f (a*ages:
g (efenses
=se headings on a negligence questionIseparate out the ele*ents "n an essay, use the facts
and engage in analysis
(. %uty !"# $$ %&
' :eneral duty rule:
a (uty is a significant issue where there is:
!'&
!/&
!1&
!4&
/ =nforeseeable +laintiffs
a $n the fa*ous +alsgraf case, Kustice Cardo-o articulated the rule that:
EXAMPLE: (rudge is driving negligently, ju*ps the curve and collides into the back of a parked car )he
parked car contained e.plosives, and a huge e.plosion occurred )hree blocks away, +olyanna was
walking down the street and was hit by a piece of falling glass fro* the e.plosion 8he sues (rudge for
negligence and will lose because she is not a foreseeable plaintiff
23%M )$+
b >escuers:
H&P'THETICAL
(ella negligently fails to *aintain a stool in her ice crea* parlor 3ena, a custo*er, sits on the stool
and falls on to the ground because of the disrepair of the stool +arker runs across the ice crea*
parlor to help 3ena, but slides on the ice crea* 3ena dropped when she fell, breaking his ankle
(oes (ella owe 3ena a duty? +arker?
1 Aonfeasance:
a Misfeasance:
!'&
!/&
EXAMPLE: (ebo is driving and because he is not paying attention, fails to stop at a stop sign
"wes a duty to plaintiff )his was *isfeasance, created an affir*ative risk of har*
b Aonfeasance begins with the assu*ption that there is no duty at all
!'& (uty to rescue or aid
EXAMPLE: (iablo is walking on the railroad tracks when he hears the sound of a baby crying 6e
knows a train is co*ing and watches it kill the baby )he parents of the baby sue (iablo for
negligence (iablo owes no duty
!a& EXCEPTI'",:
'&
EXAMPLE: (e.ter is driving across a narrow bridge and is driving on the wrong side of
the center line +olly tries to avoid hi* and drives off the bridge (e.ter has a duty
/&
EXAMPLE: (elilah is on a deserted beach and sees a car fly over a bridge into the
water (elilah has no obligation to rescue, but if she undertakes to act she cannot then
swi* away
a& 8o*e jurisdictions say you are only liable if you leave the defendant in a worse
position
b& :ood 8a*aritan statutes:
1&
EXAMPLE: +alatin calls (ina saying that he has chest pains (ina says she will take hi*
to the 2> "n her way over to his house, (ina runs into friends and goes with the*
instead of +alatin 8he owes hi* a duty because she said she would co*e to his aid
4&
EXAMPLE: $f (iablo was the father of the baby on the railroad tracks, he would have a
duty to rescue it
Co**on carrier/passenger $nnkeeper/guest Captain/passenger or sea*an (rinking
buddies
H&P'THETICAL
(arla, an e.pert swi**er, is sunbathing on a deserted beach when suddenly +aulo’s car drives off a
bridge and into the water $s (arla liable if she ignores +aulo’s plight and continues sunbathing?
What if she starts bringing +aulo back to shore, then abandons the rescue because she spots a rare
fish she wants to inspect?
H&P'THETICAL
(ino, a driver for Mauvehound 7us #ines, sees that a passenger is having difficulty breathing (oes
(ino have a duty to co*e to the passenger’s aid? (o the other passengers?
!/& %uty to control third )arties
EXAMPLE: (elberto and )ina are strangers sitting ne.t to each other at a bar )hey start chatting
and )ina says her husband is going to co*e by and pick her up 8he says she is going to kill hi*
when he does )ina leaves and shoots her husband 6usband sues (elberto for not warning hi*
!a& )here is no duty to control the conduct of a third person as to prevent hi* fro* causing
physical har* to another
!7& EXCEPTI'":
EXAMPLE: % prison has a dangerous cri*inal locked away and the cri*inal escapes )he
prison has a duty to warn people in the neighborhood
EXAMPLE: % *other knows that her son always tries to kill babysitters when she leaves hi*
with the* 8he *ust warn the babysitter
EXAMPLE: +sychotherapist e.ercises enough control that when they know of the patient’s
dangerous propensity, there is a duty to warn the party that *ight be in danger
!c& +roviders of alcohol
'& )raditional rule:
/& (ra* 8hop %cts:
!d& Aegligent entrust*ent:
EXAMPLE: 0ather gives son a gun to play with $f son shoots a third party, the father can be
sued
!1& (uty to +rotect:
!a&
!7& EXCEPTI'",:
'&
H&P'THETICAL
)enant +a.ton is robbed at gunpoint by a stranger while in the laundry roo* of his apart*ent
building owned by (rucilla %nother tenant was robbed in the laundry roo* last *onth Can +a.ton
proceed with a negligence action against (rucilla?
4 When the defendant is a govern*ental entity, the question of whether the defendant owes a duty to the
plaintiff will depend on the function the govern*ent is fulfilling that gives rise to the cause of action
a +roprietary function:
!'&
!/&
b (iscretionary activity:
!'&
!/&
c Ministerial function:
!'&
EXAMPLE: +arlu is injured at an intersection when she it hit by a car 8he sues the city, saying there
should have been stop sign City will probably win )he decision of where to place the stop sign is a
judg*ent decision on the part of the city
EXAMPLE: $f the stop sign was installed incorrectly, +arlu would be able to recover against the city
!/& +ublic duty doctrine:
When a govern*ent agency !eg, police, fire depart*ent& is sued for failing to provide an adequate
response, courts will find no duty
!%& EXCEPTI'",:
'&
/&
d $f the defendant is a utility:
5 $f the plaintiff’s injury is not personal injury or property da*age, duty issues arise
a Emotional %istress
!'&
EXAMPLE: (ell is speeding and driving negligently 6e collides with and injures +uka, breaking her
leg in five places +uka cannot work, has a lot of *edical bills and her car is destroyed 8he is in
great pain and will walk with a li*p for the rest of her life +uka can recover for pain and suffering
!/& %irect Actions:
!a& $n *ost jurisdictions, to recover for e*otional distress the plaintiff *ust:
'&
/&
EXAMPLE: +avi is standing on the sidewalk waiting to cross the street (ab ju*ps the
curb, al*ost gets run over but ju*ps away +avi has a heart attack because he was
al*ost run over % duty is owed because +avi was in the -one of danger
1& EXCEPTI'",:
a&
b&
!b& $n a *inority of jurisdictions, if defendant has a pree.isting duty to plaintiff, plaintiff *ay
recover for negligent infliction of e*otional distress
!1& (ystander Actions:
!a& Many jurisdictions require the bystander to have been in the -one of danger !6owever, *ost
courts have now adopted so*e version of the bystander liability rule % plaintiff *ay recover
for negligent infliction of e*otional distress under a bystander theory if he !'& was located near
the scene of an accidentL !/& suffered severe e*otional distressL and !1& had a close
relationship with the victi*&
EXAMPLE: Mo* and (ad go out for a walk with Kunior (ad and Kunior are holding hands
and crossing the street, Mo* stopped to tie her shoe % negligently driven car runs over and
severely injures Kunior (ad ju*ps out of the way Mo* watches the events Mo* and (ad
both have heart attacks and sue the driver for A$2( =nder M72, only (ad can recover
because he was in the -one of danger Would have direct and bystander action Mo* cannot
recover
!b& 8o*e jurisdictions allow plaintiffs outside the -one of danger but on the scene of the injury to
recover for e*otional distress
b !ron$ful Conce)tion0 !ron$ful (irth0 !ron$ful Life
"n the M72, this is usually a wrong answer due to the jurisdictional splits
EXAMPLE: 3ena goes to see (r (estructo for a*niocentesis and (r co**its *alpractice and
punctures the fetus’ lung Child is born with a collapsed lung Child can sue (r because negligence is
why he has a collapsed lung
!'& Wrongful conception applies where the injury is:
!a& (a*ages typically involve:
!/& Wrongful birth is:
!a& Wrongful birth clai*s generally ste* fro*:
!b& (a*ages:
!1& Wrongful life is:
? #and +ossessor #iability
23%M )$+

a Plaintiffs on the land
!'& In#itees
!a& %n invitee is:
EXAMPLE: 8hoppers in a store or patrons in a *useu*
!b& (efendant has a duty to e.ercise reasonable care to prevent injuries to invitees caused by
activities conducted on his land
!/& Licensees
!a& % licensee is:
H&P'THETICAL
(elbert invites his class*ate +aco to dinner at his ho*e +aco is injured when his hand is cut on a
piece of broken tile in (elbert’s bathroo* $s +aco a licensee or an invitee?
!b& #and possessors *ust warn licensees of:
!1& Tres)assers
!a& )respassers are:
!b& "nly obligation on the land possessor is:
!4& 8tatus can be debatable and can change
EXAMPLE: % (ean is having an open house for students of her law school When +arton trips over
a sprinkler head covered by grass and breaks his ankle, he sues (ean 6e is probably an invitee
because he was there to confer a benefit on (ean )here is a duty, but has (ean been reasonable?
+arton starts wandering around the house and ends up cutting hi*self on a piece of broken *arble
Ao longer an invitee Could he have reasonably believed that he had i*plied consent to be in that
part of the house? $f a licensee, (ean had a duty to warn $f a trespasser, no duty to warn
!5& "ther duties owed by land possessors
!a& %ctivities on the land:
!b& "nly for an invitee does a land owner have a duty to search out dangers on the property
!c& $f there are known or frequent trespassers:
EXAMPLE: (abya knows of trespassers $f she builds a crocodile pit and hides it, she *ust
put up a warning of the dangers $f there is naturally occurring quicksand, she does not need to
warn
!?& child Tres)assers 1Attracti#e "uisance %octrine2
!a& $f the conditions apply, even though there is a trespassing child, the child will be treated like an
invitee
!b& 0ive factors:
'&
/&
1&
4&
5&
EXAMPLE: 8i.9year9old +ablo is trespassing on (evin’s land (evin is building a new
barn so there is scaffolding and construction +ablo starts walking around when one of
the boards cracks, he falls and breaks his back +ablo sues (evin Court will apply the
factors
!B& Minority approach:
b Plaintiffs not on the land 1but ad3acent to it2
!'& %rtificial condition on the land:
!/& Aatural condition on the land:
EXAMPLE: (esiree builds a fau. 2iffel )ower on her property "n a windy day, a piece of the
tower breaks loose and hits +ierre on the head +ierre sues (esiree 8he owes hi* a duty of
reasonable care
$f +ierre is blinded by a naturally occurring quicksand pit, he is not owed a duty
c Landlords and Tenants
!'& #andlords are not liable unless:
!a&
!b&
!c&
!d&
C. ,tandard of Care !"# $$ 7&
' 4easonably Prudent Person 5nder the ,ame or ,imilar Circumstances
a "bjective standard of care:
b Must deter*ine what circu*stances are relevant
EXAMPLE: 1F9year9old (olores has lived her entire life in A@C 8he has never driven a car (olores
accepts a job in #%, takes the driving test and passes "n her first day as a licensed driver, she collides
with +inky and +inky sues )he fact that it is her first day is irrelevant
!'& (efendant *ust rise up to the level of the average person in the co**unity
!/& We do not consider:
!1& We do take into account:
!a&
!b&
EXAMPLE: (elbert is notified that his child was injured and taken to the hospital 6e ju*ps
into his car and speeds to the hospital and ends up injuring +la. Kury will consider whether
(elbert acted reasonably when rushing to attend to his injured child
EXAMPLE: $f (orkus is driving while distracted and has to veer his car into +o*pador’s
Kaguar in order to avoid hitting a child, he cannot clai* e*ergency because he created the
situation
c %nalysis of the breach is:
0ailure to act as a reasonably prudent person:
!'&
!/&
!1&
EXAMPLE: (unco is a trolley co*pany and decides to build one using uninsulated wires +utnick is
walking across the bridge carrying a *etal pole and the pole *akes contact with the wires,
shocking hi* Must use above considerations to deter*ine whether standard of care was *et
!4& Custo* evidence
!a& (eviation favors plaintiff
!b& Co*pliance favors defendant
EXAMPLE: +laintiff could put on evidence that *ost trolley lines insulate their wires )his is
helpful evidence in proving negligence if it is well9established custo* designed to prevent
shocks fro* the uninsulated wires
/ Children
a )he reasonable person standard specifically takes account of age when defendant is a *inor
b Majority of jurisdictions:
!'& 8ubjective:
!/& "bjective:
c Minority of jurisdictions:
( EXCEPTI'":
EXAMPLE: ''9year9old (arla is driving her parents’ car and collides and injures +ava, when +ava sues
(arla, because she was driving a car which is an adult activity and an inherently dangerous activity,
(arla does not get the child standard and will be held to the standard of the reasonably prudent person
1 ,tatutory and "e$li$ence Per Se
a % statute that provides for civil liability supersedes the co**on law of torts
EXAMPLE: $f a state legislature passes a law that says ;anyone who is injured in an auto*obile accident
and was not wearing their seatbelt cannot recover in tort,< a plaintiff cannot recover in a negligence
action if she was not wearing a seatbelt
b Aegligence per se:
!'& When deter*ining whether the statute should apply, a judge considers:
!a&
!b&
EXAMPLE: #egislature in the state of +anic passes a law that says ;anyone driving after
sundown without headlights is guilty of an infraction punishable by up to a E',FFF fine< )his is a
cri*inal law (ana is driving after dusk without headlights and cannot see )rachsel crossing the
street and she runs over and injures hi* )rachsel sues (ana in negligence and would prefer
that the judge use the statute to set the standard of care because it li*its the jury role
!/& $n a *ajority of jurisdictions, this *eans that an une.cused violation conclusively establishes that
defendant breached his duty to plaintiff
!1& Minority jurisdictions regard a qualifying violation of statute by defendant as either raising a
rebuttable presu*ption or as pri*a facie evidence that defendant’s conduct breached the duty to
plaintiff
c When the statute does not apply
!'& 8tatute will not be used to set the standard of care but the case proceeds under reasonable and
prudent person standard of care
EXAMPLE: 8tate of Koy passes a statute that requires all railroads to construct secure fences
between their property and neighboring property, failure to do so results in a fine up to E',FFF
(unn railroad constructs a fli*sy fence between their land and +ierre’s >ailroad workers *ow the
lawn ne.t to the fence, and on the other side of the fence is +ierre’s cow Cow knocks the fence
over and eats herself to death on the cut grass 8tatute is not designed to protect cows fro*
overeating and will not apply
!/& 8ituations in which the statute standard will not apply:
!a&
!b&
EXAMPLE: (iva injures +avarotti in a collision +avarotti wants to show that (iva was driving
with an e.pired license and use the statute as a standard of care Court will require +avarotti
to show that (iva was driving unreasonably
4 Professionals
a 0or lawyers, doctors, accountants and architects, courts will defer to the profession:
b Medical Malpractice:
!'&
!a& 8pecialists:
!b& :eneral practitioners:
EXAMPLE: (r (o-e is an anesthesiologist and ad*inisters anesthesia to +edric %fter two
hours, +edric gets up and then falls and suffers injury 8ues (r for *edical *alpractice
2vidence shows other anesthesiologists allow patients to rest for four hours, not two hours
after anesthesia )his evidence shows deviation fro* custo*, (r will lose
$f (r can shows that two hours are custo*ary, +edric loses since (r has co*plied with
custo*
c #ack of infor*ed consent:
!'&
!/& )raditionally, doctors *ust divulge those risks that are custo*arily divulged
!1& 8tandard of *ateriality:
H&P'THETICAL
+e.ta decides to let (r (ial perfor* a nose job for cos*etic reasons %lthough (r (ial does nothing
wrong in the surgery, +e.ta loses her sense of s*ell as a result of the surgery #osing sense of s*ell
is an inherent risk of the surgery +e.ta sues (r (ial for *alpractice, clai*ing that he should have
divulged the risk (octors in good standing do not custo*arily divulge this risk, although it is a
*aterial risk of nose jobs Was (r (ial obligated to divulge this risk in a professional rule
jurisdiction? $n a patient rule jurisdiction?
d >ules for *edical *alpractice apply to architects, accountants and lawyers
!'& $n order to prevail in a legal *alpractice action, plaintiff *ust show:
%. (reach of %uty !"# $$ C&
' +laintiff’s burden:
/ Kust the happening of a bad result doesn’t establish any sort of unreasonable conduct on the part of the
defendant
a $dentify specific alleged unreasonable conduct
!'& $f you cannot, there are special hurdles to deal with
1 )wo types of evidence to show breach of duty
a (irect evidence:
b Circu*stantial evidence:
EXAMPLE: 0ather bakes a cherry pie and leaves it in the kitchen to cool %n hour later, a large chunk is
*issing 6e sees his daughter’s )9shirt, lips and teeth covered in red )his is circu*stantial evidence
that daughter ate the cherry pie
!'& 8lip9and9fall cases
!a& 0or plaintiff to recover:
EXAMPLE: +ru is shopping at a *arket when she falls on grapes and breaks her leg "nly
proof is the injury Ao evidence fro* which the jury can find unreasonable conduct on the part
of the *arket $f the grapes are blackened, she will get to the jury because the condition of the
grapes are circu*stantial evidence that the grapes were there long enough that the *arket
should have discovered the* and re*edied the condition
!/& Res ipsa loquitur !;the thing speaks for itself<&
!a&
!b& +laintiff needs to show:
'&
/&
1&
EXAMPLE: +ar* is watching (unCo’s livestock auction when a steer falls through the
ceiling and into his lap 8ues (unCo for negligence, (unCo says that there is no proof of
negligence on their part =nder res ipsa loquitur, jury can infer breach of duty if +ar* can
prove his portion
!c& 2.clusive control is not required any*ore:
EXAMPLE: )ra. goes to B9'' and buys chewing tobacco *anufactured by (ru*7eat When
he opens the tin, he finds a deco*posed hu*an toe )ra. sues (ru*7eat for negligence 6e
cannot show what (ru*7eat did wrong, but can assert res ipsa loquitur
!d& Can be used in the conte.t of *edical *alpractice
'& Co**on Gnowledge 2.ception:
!e& Multiple defendants:
'&
/&
EXAMPLE: +laintiff goes in for an appendecto*y and co*es out suffering an injury to his
right shoulder 8everal people worked on plaintiff while unconscious +robably the result
of *edical *alpractice, but couldn’t show who or what injured hi*
EXAMPLE: +laintiff walking down the street past an apart*ent building and gets hit in
the head by a flowerpot 6e cannot sue all 1F tenants of the building because they are
not acting as a group
!f& Kury can draw an inference of a breach of duty
!g& "nly applies in the conte.t of the tort of negligence and only to proving the ele*ent of breach
of duty
H&P'THETICAL
+ashra is injured when a side of beef falls fro* the sky and hits her on the head %ll +ashra can
show is that she was walking by (unCo’s Meat 8torage Warehouse when this occurred Can +ashra
*aintain an action against (unCo?
E. Cause.in.fact 1Actual Cause2 !"# $$ (&
'
EXAMPLE: Kurisdiction has a law that all *otorists *ust honk horns when they are driving on curvy roads to
alert onco*ing traffic $f (wee-el is driving in violation of that statute, he would be negligent per se when he
collides into and injures 6arve 0acts show that 6arve is driving his brand new car with a state of the art
sound syste* and he is playing Metallica as loud as possible 2ven though 6arve *ight be able to establish
the duty owed to hi* was breached, he *ight lost his negligence clai* because to establish causation, the
general test if ;but for< 7ut for (wee-el’s failure to honk, *ore likely than not, 6arve would not have been
injured $t is likely that 6arve would not have heard the honk anyway Ao causal link
a +laintiff only has to show:
EXAMPLE: >ochester *i.ed potable water line with sewage line )he line that has the drinking water is
called the 6e*lock line, sewage line is called the 6olly line 8tubbs contracts typhoid City says there
are /F ways to get typhoid %s long as the plaintiff can show that it is *ore likely than not that the city
was responsible, he has established cause in fact $f the jury says there is a B5M chance the City is
liable, the plaintiff will still get all of his da*ages
/ 0our areas where cause9in9fact issues arise
a Multiple causes
!'& Multiple defendants, defendant and act of nature etc
!/& 8ubstantial factor test:
EXAMPLE: #andlord failed to provide hot water +laintiff heats water on the stove and carries it to
the bath Child runs out and causes hi* to spill it on hi*self 7oth landlord and child would be but9
for causes
!a& Must use where:
EXAMPLE: %bel negligently sets a fire $t by itself would burn down +arthenon’s *ansion
worth E'M 3ena also sets a fire that would by itself burn down the *ansion )hey co*bine
and destroy the house $f +arthenon sues %bel, he cannot show but for his fire, his house
would not have been destroyed because 3ena’s fire would have done the sa*e Must use
substantial factor test
!b& %ssu*e joint and several liability:
'&
b #oss of chance
!'& )raditional application
EXAMPLE: +aulina goes to see (octor (octor co**its *alpractice and fails to diagnose cancer
$f (octor had *ade a ti*ely diagnosis, there would have been a 4FM chance that +aulina could
survive but by the ti*e it is discovered, it is incurable +aulina sues (octor +aulina will lose
because she cannot show *ore likely than not but for (octor’s *alpractice she would have
survived %lready had a ?FM chance of death
!/& Many jurisdictions recharacteri-e the injury:
!a&
c %lternative liability theory !8u**ers v )ice&
EXAMPLE: )ice and 8i*onson are hunting when they hear a rattling of the bush )hey both shoot in the
direction of the bush and end up shooting 8u**ers "nly one of the two hunters is responsible for the
har* but 8u**ers cannot show who it is Cannot use but for or substantial factor test
!'& 0actors for application:
!a&
!b&
!c&
!/&
d Market share liability:
!'&
!/& Court uses several liability:
EXAMPLE: Co*pany % had 'FM of relevant *arket, will pay 'FM of the plaintiff’s da*ages unless
it can show that it could not have *ade the product that caused the plaintiff’s har*
+. Pro*imate 1Le$al2 Cause !"# $$ 2&
' =nforeseeable e.tent of har*:
a
EXAMPLE: (ella is driving negligently and collides with and totals +o*padour’s Kaguar (efendant says
*ost people drive old )oyotas worth E'5,FFF 8he will pay E'5,FFF, not E'FF,FFF suffered )his will not
hold
b 2ggshell 8kull >ule:
EXAMPLE: $f +orter had a predisposition for brittle bone disease and (uane collides with hi* Aor*ally
E'FF worth of har*, but +orter suffers E'FF,FFF worth of har* (uane is on the hook for the full e.tent
of the injury
/ =nforeseeable type of har*
a =se a rule of foreseeability or the risk rule:
EXAMPLE: (o* negligently leaves a jar of rat poison ne.t to the stove with all of the other spices
+rissy is using the stove and the heat fro* the stove interacts with the rat poison in a way that the jar
heats up and beco*es a *issile 8*ashes into chandelier, breaking it and causing E/F,FFF worth of
da*age (o*’s lawyer could argue that even though (o* owed a duty to +rissy, and that he acted
unreasonably, this is not the foreseeable type of injury )he foreseeable injury would be ingesting the rat
poison
1 =nforeseeable *anner of har*
a ,u)ersedin$ Cause:
b Cul)ability:
EXAMPLE: (ora negligently fails to provide adequate locks on the front door of the apart*ent building +av
is injured when he is *ugged in the laundry roo* 8ues (ora clai*ing she owed hi* a duty 2ven though
there was intervening cri*inal conduct, it will not be superseding because the har* was foreseeable based
on the risk of the defendant
EXAMPLE: (unCo is a construction co*pany $n violation of statute, they have a worksite that does not
have a barricade or flaggers to control traffic in the area +robably negligent per se because +arker, a
worker, is injured by a car that ends up on the worksite )he facts show that the car is being driven by
3ena, who is the e.9wife of +arker 8he intentionally runs hi* over )ype of har* you can foresee is a
car driving onto the site, injuring the worker (unCo would successfully argue that they were not the
pro.i*ate cause because 3ena is a superseding cause
EXAMPLE: +arker is taken to the hospital, goes into surgery and because (octor co**its *alpractice,
he suffers an e.tra E'FF,FFF worth of har* (octor is liable, both (unCo and 3ena are both causes9in9
fact Will be liable as pro.i*ate cause
c 8ubsequent negligent conduct is generally not so unforeseeable that it cuts off liability
!'&
EXAMPLE: $f (octor decides to intentionally chop of +arker’s leg when he is in surgery following
the accident, (unCo and 3ena will not be liable )oo freakish, une.pected and bi-arre, and will cut
off liability
H&P'THETICAL
(ana negligently operates her auto and strikes +orter, injuring hi* +orter, whose leg is broken fro*
the accident, is taken to a nearby hospital While he is being treated for his broken leg, there is an
earthquake that causes the roof to collapse % section of the roof strikes +orter on the head, causing
a concussion $s (ana liable for +orter’s head injury?
0">2822%7#2
=A0">2822%7#2
!$2, 8=+2>82($A:&
2ffect
Chain of pro.i*ate causation unbrokenL
original defendant re*ains liable
Chain of pro.i*ate causation brokenL original
defendant’s liability cut off for consequences of
antecedent conduct
)ypical
2.a*ples
8ubsequent *edical *alpractice, including
aggravation of plaintiff’s condition
Cri*inal acts and intentional torts or torts of third
parties, but only where they are unforeseeable
under the facts or circu*stances
8ubsequent disease or accident, including all
illnesses and injuries resulting fro* plaintiff’s
weakened condition, but not deadly, rare
diseases
6ighly e.traordinary har* arising fro* defendant’s
conduct, as viewed by the court, including grossly
negligent conduct of third parties
Aegligent rescue efforts =nforeseeable acts of :od
-. %ama$es !"# $$ 0&
'
a )here *ust be a cogni-able injury
!'&
!/&
EXAMPLE: Het negligently neuters a dog against the plaintiff’s wishes Court will not allow the
plaintiff to recover because this is not a cogni-able injury )he plaintiff was not planning to breed or
show the dog, so the plaintiff suffered no injury
/ Co*pensatory da*ages
a
b )hree rules:
!'&
!/&
!1&
c )wo categories
!'& 8pecial da*ages:
EXAMPLE: $f a four9year9old child is injured in a way that will not allow the* to work ever again, we
*ust speculate as to what his lost wages would have been for the rest of his life
!a& Collateral 8ource >ule:
!/& :eneral da*ages:
d %voidable Consequences >ule !to be discussed in *ore detail under ;(efenses<&:
1 +unitive (a*ages
a Aever recoverable just for negligent conduct (efendant has to be *ore culpable than negligent
!'&
b "ften called e.e*plary da*ages
!'&
c Wealth of defendant is highly relevant
!'&
!/&
BAR EXAM APPLICATION
Juestion 1
0rank received a new snow*obile for Christ*as )he first week of Kanuary, a snow stor* drops a foot of new snow in
the *ountains 0rank decides to take his new snow*obile out for a spin 6e is *oving *uch too fast when he co*es
over a rise and sees another snow*obile directly in front of hi* 6e swerves to avoid the other snow*obile but loses
control 6is snow*obile crashes into the other snow*obile 0ortunately, 6ans, the driver of the other snow*obile, is not
injured, but his snow*obile has been rendered inoperable 0rank’s snow*obile still runs, so he goes for help while
6ans stays behind with his da*aged snow*obile While 6ans waits for 0rank to return, a large branch of a nearby tree
snaps under the weight of the heavy, new snow )he branch falls and hits 6ans, causing 6ans to break his collar9bone
and left ar*
$f 6ans sues 0rank for these injuries, 0rank’s best defense would be
%& that he was not negligent
7& that 6ans was negligent in standing near a tree with snow9laden branches
C& that the falling tree branch was an intervening and superseding force
(& that his negligent conduct was not the actual cause of 6ans’s injuries
BAR EXAM APPLICATION
Juestion 4
$n order to facilitate street cleaning, the Metropolis city council passed an ordinance barring *otori-ed vehicles fro*
driving through the city center fro* 5 a* to ? a* on )uesdays "ne )uesday, the defendant, who is a resident of
another city, was speeding through the Metropolis city center at 5:1F a*, when he hit a pedestrian )he defendant did
not know about the ordinance )he pedestrian has sued the defendant on a negligence cause of action
What is the *ost likely result?
%& )he pedestrian will prevail, because the defendant violated the ordinance by driving through the city center at
5:1F a* on a )uesday
7& )he pedestrian will prevail, because the defendant failed to act reasonably under the circu*stances
C& )he pedestrian will not prevail, because the defendant did not know about the ordinance
(& )he pedestrian will not prevail because the local ordinance will not establish the standard of care
H. %efenses to "e$li$ence !"# $$ :&
' Contributory "e$li$ence and Com)arati#e +ault
a (efendant has the burden of proof to show that:
b )he deter*ination the legal effect of the plaintiff’s contributory negligence depends on the jurisdiction
!'&
!a& =nder contributory negligence:
EXAMPLE: $f +erfection was dee*ed 'M at fault and (iablo DDM of fault and +erfection sues
(iablo, under contributory negligence, the fact that +erfection was 'M at fault would bar
recovery
!b& Co*parative fault reduces the plaintiff’s recovery
'& +ure co*parative fault:
EXAMPLE: $f plaintiff is CFM at fault and suffers E'FF,FFF worth of da*ages, plaintiff will
recover E/F,FFF fro* negligent defendant
/& Modified co*parative fault:
EXAMPLE: $f plaintiff is ?FM at fault, they will be barred fro* recovery $f plaintiff is 4FM at
fault, the plaintiff would recover ?FM of her da*ages
!c& )he last clear chance doctrine is generally going to be the wrong answer
c Co*parative 0ault:
/ Assum)tion of 4is
a 2.press assu*ption of the risk arises where:
!'& Hoid against public policy when dealing with a necessity
H&P'THETICAL
%s a condition of entry to ski at (un’s 8ki #odge, Mary signs a waiver stating that she will relieve (un
of negligence liability Marion (un, in a *o*ent of spite, sprays down a section of snow to *ake it
icy while perfor*ing her duties as a slope groo*er, notwithstanding her supervisor’s repeated
warnings to her not to do so Mary slips on the ice and breaks her leg 6as she assu*ed the risk of
her injury?
b +laintiff *ay also i*pliedly assu*e the risk
!'& +laintiff is barred fro* recovery or recovery is reduced under the assu*ption of the risk doctrine if
defendant establishes that:
!a&
!b&
!c&
EXAMPLE: +lato gets in the car with (ickens (ickens s*ells of alcohol and there is tequila in
the car (ickens crashes the car and +lato is injured (ickens can argue that +lato elected to
get into a car with a drunk driver and assu*ed the risk
c %ssu*ption of the risk is a subjective focus while contributory negligence and co*parative fault is an
objective focus
EXAMPLE: 7oth (ickens and +lato are into.icated )his would be relevant to +lato’s assu*ption of the
risk )here would be no assu*ption of the risk, but there would be co*parative fault
d +rofessional rescuers !0irefighter >ule&:
EXAMPLE: (orkus is s*oking in bed and falls asleep and his house catches on fire 0rancine 0irefighter
suffers s*oke inhalation when fighting the fire and sues (orkus for negligence =nder the rule, she will
not be allowed to recover because she assu*ed the risk since it is part of her job
e +ri*ary assu*ption of the risk:
EXAMPLE: +a.ton decides to play basketball and gets tripped and injured by (uncan $f +a.ton sues
(uncan, under pri*ary assu*ption of the risk, courts would say that an inherent risk is that another
player *ight be negligent $n agreeing to play, you have relieved (uncan of the duty to be non9negligent
1 %voidable consequences:
a
EXAMPLE: (rew negligently injures +olly, causing E'F,FFF worth of da*ages but +olly refuses to seek
*edical help and her da*ages go fro* E'F,FFF to E'FF,FFF, (rew can say he does not owe the e.tra
EDF,FFF
b "ften arises where:
BAR EXAM APPLICATION
Juestion 5
Crossing a busy street at night, a walker failed to look before crossing and failed to use a clearly *arked crosswalk 5F
feet away )he place where the walker crossed should have been brightly lit, but it was dark )he local county, where
the walker was crossing, negligently failed to replace a street light despite several notifications fro* local citi-ens While
crossing, the walker was struck by a driver, who was e.ceeding the speed li*it
)he walker sued the driver and the county in the state of 3, where the accident occurred )he state of 3 has a pure
co*parative negligence statute and provides both for joint and several liability of joint tortfeasors and for contribution
a*ong joint tortfeasors based upon co*parative fault
)he jury has deter*ined that the walker suffered E/FF,FFF in da*ages $t also deter*ined that the walker was 4F
percent at fault, the county was 'F percent at fault, and the driver was 5F percent at fault
What is the a*ount of da*ages for which the county is liable?
%& Aothing, because the walker was *ore negligent than the county
7& E/F,FFF, because the county was 'F percent negligent
C& E'/F,FFF, but the county can collect E'FF,FFF fro* the driver if it pays the entire a*ount
(& E'/F,FFF, but the county can collect E?F,FFF fro* the driver if it pays the entire a*ount
BAR EXAM APPLICATION
Juestion ?
"ne winter *orning, Kan needed to get to the airport, so she called a cab (ue to the ice on the roads, traffic was terrible
With less than an hour before her flight, Kan offered Carl the cab driver an additional E5F if he would ;find so*e 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 (an, a pedestrian, saw the accident and atte*pted to help %s (an was atte*pting to help Carl out of the cab,
(an slipped and broke his leg
(id Carl owe (an a duty of care?
%& @es, (an, as a rescuer was owed an independent duty of care
7& @es, because it was foreseeable that (an could be injured
C& Ao, because (an assu*ed the risk of injury when he atte*pted the rescue
(& Ao, because (an’s negligence will bar his clai*
III. STRICT LIABILITY
A. %efinition !"# $$$ %&
(. Cate$ories !"# $$$ 7&
' Possession of animals
a Wild %ni*al >ule:
EXAMPLE: (a*ian has a pet tiger 6as always been gentle, but +a.ton is visiting and the tiger bites off
his hand Ao *atter how unforeseeable, (a*ian is liable
b (o*estic +et >ule:
/ Abnormally dan$erous acti#ities
a %n activity is abnor*ally dangerous when:
EXAMPLE: 7lasting or dyna*ite, crop dusting, transporting to.ic waste, fu*igating
b Plaintiff can reco#er 6hen:
!'& Pro*imate cause issue:
EXAMPLE: Ae*o is blasting and the noise freaks out the *inks on +ierre’s *ink far* to the point
that the *other *inks start to eat their kittens +ierre is upset and sues Ae*o and says strict
liability %lthough Ae*o was blasting, this is dangerous because it causes debris and destruction,
not because it causes *inks to eat their kittens Aot abnor*ally dangerous +ierre can only recover
upon proof of fault
H&P'THETICAL
(inah Mite, an e.plosives dealer, accidentally drops a pallet of bo.es containing e.plosives on
+atella, breaking her leg and pinning her to the ground %ccident investigators on the scene later that
day are injured when one of the destabili-ed e.plosives detonates $s (inah potentially subject to
strict liability for +atella’s injury? 0or the accident investigators?
C. %efenses !"# $$$ C&
' Contributory "e$li$ence
a M72 >ule:
EXCEPTI'":
EXAMPLE: +ar* is driving on the highway and he is listening to the radio when he sees a sign that says
;(anger: 7lastingI)urn off your radio< that (ynaco had posted +ar* did not turn off his radio )here is
an e.plosion and he sues (ynaco in strict liability )hey can assert a defense that he knew of the
danger $f +ar* were speeding and did not see the sign, he gets full recovery
IV. PRODUCTS LIABILITY
)his is not the na*e of a tort, but an area of tort liability where the plaintiff is injured due to product related
har* #egal theories: negligence, breach of warranty, strict products liability
A. ,trict Products Liability in Tort !"# $H %&
' 0ocus is on:
/ )here are eight ele*ents of strict products liability
a Pro)er )laintiff
!'&
EXAMPLE: %rlene buys a chainsaw *anufactured by (iceCo %rlene lends it to her neighbor 7rian
6e lends it to +lacido +lacido suffers injury due to a defect %s a user, +lacido can sue (iceCo in
strict products liability $f his wife is injured as a bystander, she can sue (iceCo as well
b Pro)er %efendant
!'&
!a& )his includes:
!b& )his does not include:
A")2
EXAMPLE: $f (uncan sells a chainsaw at a garage sale and +lacido is injured, (uncan cannot
be sued
c Pro)er Conte*t for ,trict Products Liability
!'&
!/& When there is both a service and a product:
EXAMPLE: +rudence goes into defendant’s beauty salon and wants a per* Halente chooses a
per* *anufactured by (unCo and applies it to +rudence +rudence goes bald and sues Halente in
strict liability Court says that the product predo*inates and Halente can be a proper defendant in
strict products liability (ifferent fro* a dentist using a defective needle to ad*inister Aovocain
d %efect
!'& %l*ost all jurisdictions i*pose strict liability where a product is ;in a defective condition
unreasonably dangerous<
!a& 0or*ulations of liability occur under three categories of defects:
'& Manufacturin$ %efect
a&
EXAMPLE: )oe in the chewing tobacco
b& +laintiff *ust show that:
/& %esi$n defects
a&
EXAMPLE: 0ord +into (ue to the place*ent of the gas tank, it would e.plode upon
*inor collision 0ord designed the car this way, but it was still faulty
b& "rdinary Consu*er 2.pectation )est:
EXAMPLE: +laintiff is injured when he is at his workplace using safety goggles )he
goggles only protect the front, but not the side +laintiff is welding and a piece of
*etal flies into his eye 8ues for a design defect, saying that it should have
protected the side +laintiff loses under this approach "rdinary consu*er would not
e.pect side protection
c& >isk9=tility 7alancing )est:
i& % product’s design is usually defective under this test if:
EXAMPLE: (eath )rap Motors decides to *arket a car called the 8tallion
(esigned to be lightweight and fuel efficient and places the gas tank in a
location, encased in light *etal +on buys a 8tallion and is driving when he is
rear9ended at 5 *ph 8tallion e.plodes and +on is severely injured +roper
defendant, plaintiff, product >isk9utility balancingI*ust show risk of placing
gas tank outweighs utility and that there is so*e reasonable alternative design
d& 8o*e products are e.e*pt fro* being found defective in design under strict
products liability under Co**ent G:
EXAMPLE,: Haccines, prescription drugs
1& Absence of !arnin$s
a& % plaintiff is asserting either:
i&
b.
b.
EXAMPLE: (unCo *anufactures rat poison and it puts on the product a
skull and crossbones and it says ;(angerIGeep "ut of >each of Children<
Child thinks it is pirate food, eats it and dies Warning could be *ade better
ii&
b.
b.
EXAMPLE: >at +robe $nc *akes an ")C weight loss *edication called
Weight9"ff +lashawn is shopping at )arget, buys it, uses it and suffers a
stroke )here is a risk of stroke in people with high blood pressure who use this
product Can sue >at +robe and )arget if he can show that >at +robe knew or
should have known that there was this risk
e Cause.in.+act
!'&
f Pro*imate Cause
!'&
EXAMPLE: Manufacturer *i.es gasoline and kerosene and sells to a phar*acy +har*acy
discovers the *i.ture and calls the *anufacturer and alerts the* +ar*ette co*es in and buys the
*i.ture 8he is injured and sues the *anufacturer )he phar*acy’s act is superseding cause
!/& #earned $nter*ediary (octrine:
g %ama$es
!'& May be recovered when:
!/& Where the har* is only to the product itself:
H&P'THETICAL
(unCo sells a defective truck to +aco 7ecause of the defect, one *orning, +aco cannot get the
truck to start and thus is unable to *ake his scheduled deliveries, causing hi* to lose E'F,FFF May
+aco pursue a strict product liability action?
h defenses
!'& Misuse
!a&
EXAMPLE: +arva stands on a chair *anufactured by (unCo to reach a pot in her kitchen
)he chair collapses under her While sitting is the intended use of a chair, it is foreseeable that
a person would stand on a chair, and thus, there is no *isuse
EXAMPLE: +laintiff contracts a rash after Kello wrestling and sues Wrestling in Kello is not the
intended use of the product, Misuse, product not defective, no recovery
!/& Alteration
!a&
!1& Assum)tion of the 4is
!a&
EXAMPLE: (u*ont *anufactures a )H +an is watching )H and it is the final *o*ents of the
final episode of %*erican $dol +an sees that the )H is s*oking and sparking, but refuses to
turn it off )H e.plodes and burns a carpet and the sofa +an sues, (u*ont can assert
assu*ption of risk $f he did not see the s*oke and sparks, no assu*ption of risk
(. Product Liability on a "e$li$ence Theory !"# $H 7&
' %ny foreseeable plaintiff is entitled to bring an action
/ %naly-e the conduct of each defendant and ask whether it was reasonable
a (ifferentiate fro* strict products liability, which considers the product rather than the person
1 Res ipsa loquitur takes the place of a *anufacturing defect in negligence theory
4 Aegligence defenses apply
C. Products Liability on a !arranty Theory !"# $H C&
' %n e*)ress 6arranty e.ists where:
EXAMPLE: %t a garage sale, (u*a tells 3aviera that the knife she is buying is rust9proof $t ends up rusting and
her husband is injured 6e can sue (u*a for breach of e.press warranty
/ %n im)lied 6arranty
a Warranty of Merchantability
!'&
!/& )here are privity and notice require*ents
!1& Can be disclai*ed
1 Where the har* is to the product itself, the only clai* a plaintiff can pursue is a clai* for breach of warranty
BAR EXAM APPLICATION
Juestion B
%9"ne 7icycles has been *aking the best bicycles around for three generations Mitchell, the grandson of the founder
of %9"ne, takes great pride in the quality of %9"ne’s bicycles Mitchell personally supervises the asse*bly line eight
hours a day to ensure quality, so that he can *aintain his reputation in the industry (espite Mitchell’s careful
inspections, Mitchell is unaware that the bicycle seats that he gets fro* 7ike Co*ponents =nli*ited are having
proble*s )hey fall off when anyone over '5F pounds sits on the* %9"ne sells its bicycles through the retailer, 7ike
Mart, a*ong others +hister buys an %9"ne bike fro* his local 7ike Mart +hister takes the bike out for a spin, and as
he *akes his first turn onto a busy street, the seat falls off +hister falls in front of onco*ing traffic and is severely
injured +hister sues 7ike Mart and %9"ne in strict product liability
Which of the following is true?
%& +hister cannot recover against 7ike Mart, because it sold the bike e.actly as it received it
7& +hister should not prevail against %9"ne, because it e.ercised due care and the faulty bike seat was 7ike
Co*ponents’ fault
C& +hister should prevail against %9"ne, regardless of whether %9"ne or 7ike Co*ponents introduced the defect
(& +hister should not prevail against 7ike Mart but should prevail against %9"ne, because %9"ne *anufactured
the bicycle
BAR EXAM APPLICATION
Juestion C
Marlin owns a ranch on which he takes care of ani*als that have been retired fro* show business >anch residents
include a lion, a tiger, and two brown bears Marlin atte*pts to provide the appropriate habitat for each type of ani*al,
*uch like a -oo "ne day, to his dis*ay, he discovers that the brown bears have so*ehow *anaged to escape Marlin
i**ediately begins telephoning the owners of the properties adjoining his ranch to warn the* about the escaped bears
)he first neighbor he calls is +otter, who owns a ranch directly to the west of Marlin’s +otter keeps bees on his land to
produce honey 6is beehives are so*e distance fro* his house but visible fro* his kitchen window While +otter is
speaking to Marlin, he chances to look out the window just in ti*e to see two bears flattening his pri-ed beehives %fter
a slight pause, he says, ;=h, Marlin, $ know where your bears are<
$f +otter sues Marlin for the da*age to his beehives caused by the bears, he will *ost likely
%& prevail, but only if +otter did not provoke the bears in any way
7& prevail, if Marlin failed to e.ercise the appropriate standard of care in confining the bears
C& prevail under a theory of strict liability
(& prevail if he can de*onstrate that he was not negligent in the *aintenance of his beehives
V. NUISANCE
A. Ty)es of "uisance !"# H %&
' Public "uisance
a % public nuisance is:
b )ypically brought by a govern*ent actor such as an %ttorney :eneral
!'& )o recover da*ages in an individual action for a public nuisance:
EXAMPLE: (isney is going to place a billboard on a country street )he sign has bright lights and
plays the song ;$t’s a 8*all World< over and over Creates a huge traffic proble* )his would be a
public nuisance
EXAMPLE: +anda runs a nursing ho*e and those who live there cannot sleep due to the constant
*usic
/ Pri#ate "uisance
a % private nuisance is:
b Mental state:
EXAMPLE: (unCo owns a feedlot in the desert that s*ells "n certain days, the wind will blow the s*ell
towards a housing co**unity that was constructed nearby +etasha, who lives there, is revolted and
asks (unCo to do so*ething about it $f (unCo doesn’t shut down the feedlot, they are engaging in
intentional conduct
c )here are five factors to consider when deter*ining whether a nuisance is a substantial and
unreasonable interference
!'&
!/&
!1&
!4&
!5&
EXAMPLE: (unCo’s feedlot was there first 6ow valued is their activity? Where else can they go,
how can they *ini*i-e the har*? 6ow significant is the injury?
1 >e*edies
a $njunction
!'& )o get an injunction, the plaintiff *ust persuade a judge that:
!a&
!b&
!/& % judge *ust do a balancing of the equities to deter*ine whether the plaintiff is entitled to equitable
relief
VI. DEFAMATION
A. 0or a defa*ation action: !"# H$ %&
(. $n analy-ing an action for defa*ation, one *ust check for: !"# H$ %&
' %efamatory messa$e
a % *essage is defa*atory if it:
EXAMPLE: %ccusing so*eone of a heinous cri*e or of cheating on an e.a*
b )he state*ent *ust be one which can be believed to be truthful and reputation9har*ing
!'&
!/&
EXAMPLE: #aw school paper says that the food in the student center has gone fro* bad to worse
)his is opinion and cannot be defa*atory $f it says that it believes that week9old vegetables are
used in the food, even though it is couched in opinion language, it can be proven true or false
c Must be defa*atory in the eyes of a reputable group
EXAMPLE: $f the Aa-i party paper publishes an article that says +russia thinks that 6itler was a horrible
person and +russia is a proud neo9Aa-i, the court will not uphold this as defa*ation
/ Pleadin$ )roblems
a Where the plaintiff is not na*ed, they *ust allege that it is of or concerning her
EXAMPLE: #aw school paper publishes an article saying that the fe*ale torts professor has been
arrested for bank robbery +rofessor +adding can sue that it is of and concerning her because she is the
only fe*ale torts professor and people will associate her with the state*ent
b % large group cannot be defa*ed
EXAMPLE: %rticle is published saying that today’s lawyers are unethical, greedy swine, there can be no
defa*ation clai*
!'& $n a s*all group, every *e*ber can bring a clai*
EXAMPLE: $f an article says that one of the surviving 7eatles has been arrested for dealing crack
cocaine, +aul and >ingo can both bring an action for defa*ation
c 8o*e state*ents *ay not be defa*atory on its face
EXAMPLE: %c*e #aw 8chool dean is *arrying Kane (oe )his is not defa*atory on its face, but other
facts *ay *ake it so, such as the dean already being *arried
1 Publication
a +ublication *eans:
b +laintiff *ust show:
H&P'THETICAL
(ina sends a sealed letter to +aykta, accusing her of plotting a *urder )he letter is opened by
+aykta’s new, very nosy roo**ate )he following week, (ina sends a postcard to +aykta containing
the sa*e accusation Will +aykta be successful in a defa*ation action for the letter? for the postcard?
c >epublication >ule:
4 Ty)e of defamation and dama$es
a Libel definition:
!'& >eputational har* is presu*ed and da*ages do not have to be proved
b ,lander definition:
!'& 0or plaintiffs to recover for defa*ation:
!a& E*ce)tions are called slander per se:
'&
/&
1&
4&
5 Common la6 Pri#ile$es
a Truth
!'& 6istorically:
!/& )oday:
b Absolute Pri#ile$e
!'&
!/& Conte.ts in which absolute privilege applies:
!a&
!b&
!c&
!d&
EXAMPLE: Congress*an (oofus stands up on the floor of the legislature and says ;people,
like *y opponent in *y last race, who are child *olesters should be in jail< %bsolute privilege
applies, no liability
EXAMPLE: "n cross9e.a*ination of a witness, attorney asks the witness if they are still a
*e*ber of the Aa-i party %bsolute privilege applies, no liability
!1& +rivilege ends if so*eone repeats the defa*atory state*ent in a non9privileged situation
c 7ualified Pri#ile$e
!'& (efendant loses an otherwise available qualified privilege if:
!a&
!b&
!c&
!/& :ives greater leeway to speech, but qualified because they can be lost
EXAMPLE: $f 3 gets a call about a job reference for student %, but 3 gives a horrible
reco**endation because he is thinking of student 7 % sues 3 for defa*ation Jualified privilege
applies because the infor*ation is of interest to a third person, but the privilege is lost if 3 is
negligent or reckless as to the truth of the infor*ation or if the infor*ation is published
? Constitutional Issues
a +rior to 'D?4, there was no 0irst %*end*ent issue defa*ation and defa*ation was a strict liability tort
b 8ince A@ )i*es v 8ullivan, four questions are considered:
!'&
!/&
!1&
!4&
c +ublic official:
H&P'THETICAL
)he (aily falsely states in an article that Mayor +acher has been e*be--ling funds )hey based
this on a source they had used before, who had proved to be reliable Will +acher be able to
recover for defa*ation?
d +ublic figure:
!'& %ll purpose public figures:
!/& #i*ited public figures:
e +rivate figure:
!'& +ublic concern:
!a& +resu*ed or punitive da*ages:
!/& +rivate concern:
VII. INVASION OF PRIVACY
A. Intrusion into ,eclusion !"# H$$ %&
'
a (oes not require any publication of infor*ation
b $nvasion *ust be done in a way that is:
EXAMPLE: 2avesdropping, wiretapping, stalking 8o*ething visible in public is not a ground for
intrusion
/ (a*ages recoverable for invasion of seclusion include:
(. Commercial A))ro)riation of Identity or Lieness !"# H$$ 7&
'
a )he wrongful use of plaintiff’s identity or likeness *ust be used:
EXAMPLE: (uncan is the editor of 8ports )oday *aga-ine Wants to publish an article about baseball
star +aco and sends a writer to interview hi* )akes a picture in which +aco is holding a can of (rek
soda (rek uses the picture to start an ad ca*paign +aco sues 8ports )oday and (rek +aco will lose
against 8ports )oday but will win his suit against (rek
C. Public %isclosure of Pri#ate True +acts !"# H$$ C&
' +laintiff *ust prove four ele*ents:
a
b
c
d
/ #ook for the passage of ti*e
1 Aeed so*e sort of publication or disse*ination of infor*ation
4 $njunction *ight be possible since the infor*ation is truthful
a Aot granted to enjoin defa*atory speech since it is false
5 Constitutional issues:
a
H&P'THETICAL
+aul, a highly respected Washington lawyer, is 6$H9positive "nly a few fa*ily *e*bers know of his
condition $n an effort to bring 6$H9positive individuals to the public’s attention, his brother sends an
e9*ail to all of +aul’s colleagues revealing his 6$H status (oes +aul have a cause of action against
his brother?
%. Portrayal in a +alse Li$ht !"# H$$ (&
'
EXAMPLE: 8tating falsely that so*eone has cancer or is poor
/ +laintiff has to show:
a
b
c
d
!'& +arallel to defa*ation rules
BAR EXAM APPLICATION
Juestion D
:erry and Marcia were both trial attorneys, speciali-ing in cri*inal defense 7oth :erry and Marcia attended the annual
conference of the country’s largest association of cri*inal defense attorneys )he conference is held at different sites
each year, and attorneys gather to discuss the latest develop*ents in cri*inal law %lthough :erry and Marcia have
never *et, they are fa*iliar with one another professionally %t a reception held during the conference, :erry
approached Marcia :erry said, ;Marcia, $’ve ad*ired your work for so*e ti*e $’* opening an office in your state
+erhaps we could pool our resources and beco*e the *ost powerful attorneys in the state< Marcia replied, ;$ will never
work with you @ou’re an unethical low9life< 8everal other lawyers who happened to be nearby overheard Marcia’s
reply
Will :erry succeed in a defa*ation suit against Marcia?
%& Ao, because there was no publication
7& Ao, because only Marcia and :erry were parties to the conversation
C& @es, if Marcia knew the co**ent would be overheard
(& @es, if it was reasonably foreseeable that the co**ent would be overheard by so*eone
BAR EXAM APPLICATION
Juestion 'F
)he :otha* (aily )attler, a tabloid newspaper, reported that (aniel Meld, a billionaire real estate developer and casino
*ogul who was considering running for +resident, had recently been treated for chronic alcoholis* in an inpatient clinic
affiliated with :otha*’s largest hospital $n fact, Meld had undergone a series of cos*etic procedures in order to
enhance his chances of winning his party’s no*ination and, ulti*ately, the presidency )wo days after the story broke,
8enator Kohn 7lutarsky, the highest ranking elected official in Meld’s party, while engaged in a filibuster began reading
the lead stories fro* newspapers all across the nation, including the Meld article fro* the )attler 7lutarsky is an
outspoken supporter of Meld’s *ain rival for the party’s no*ination
What is the likely result if Meld sues 7lutarsky for defa*ation?
%& 7lutarsky will win, if he reasonably relied on the newspaper article
7& 7lutarsky will win, because he was privileged to *ake the state*ents
C& Meld will win, if can prove actual *alice
(& Meld will win, because the state*ent was slander per se
VIII. WRONGFUL INSTITUTION OF LEGAL PROCEEDINGS
A. Malicious Prosecution !"# H$$$ %&
' Malicious prosecution arises when:
EXAMPLE: (ilbert is angry with e.9girlfriend +etunia 6e reads about a bank robbery, calls the police and
tells the* that +etunia did it $f she is tried and acquitted, she can bring an action against (ilbert for *alicious
prosecution
(. !ron$ful Institution of Ci#il Proceedin$s !"# H$$$ 7&
'
C. Abuse of Process !"# H$$$ C&
' %buse of process e.ists where:
EXAMPLE: (i* attaches a piece of real property that belongs to +ushta Clai*s he does it in order to
preserve it in order to pay off a judg*ent )he real reason he does it is that he knows so*eone else wants to
buy it, so he wants to pull it off the *arket
IX. ECONOMIC TORTS
A. Intentional Misre)resentation 1+raud2 !"# $3 %&
' +laintiff *ust prove four ele*ents:
a
b
c
d
/ :enerally an affir*ative assertion of fact or an act of conceal*ent
a 0ailure to disclose infor*ation is not a basis unless:
!'&
!/&
!1&
!4&
!5&
1 Mental state:
a
b 8cienter is present when:
EXAMPLE: (inah tells +orter that the corn that she is selling hi* is :rade % when it is :rade 7 +orter
sues for fraud Clearly she intended hi* to rely, but if (inah accidentally looked at the wrong invoice, he
would lose his fraud clai* because there is no scienter 8he *ight be negligent
(. "e$li$ent Misre)resentation !"# $3 7&
' :eneral rule:
EXAMPLE: (unCo deals with dangerous che*icals and starts a che*ical fire )o prevent har* to
businesses in the area, they notify plaintiff to evacuate +laintiff loses E'M in business because they had to
be shut down +laintiff sues (unCo and loses $f the fire had da*aged plaintiff’s building, then they would be
entitled to recover for econo*ic losses that flow fro* that
% EXCEPTI'":
EXAMPLE: % lawyer prepares a contract for a client and drafts it negligently so that the client loses E'M
and the client sues for *alpractice, the lawyer cannot avoid liability because it is purely an econo*ic
loss )here is a fiduciary duty
%ccounting fir* does its job negligently and *isstates the value of the co*pany that hires the accounting
fir* $f the hiring co*pany suffers har* as a result, they can recover
/ Who beyond a party who is in privity of contract can recover?
a
EXAMPLE: $f 3ero. hires (eloitte to do an audit because 3ero. wants to get a E'FM loan to fund a new
product line (eloitte is negligent and overstates the value of 3ero. 0irst Aational 7ank, who lends
3ero. E'FM, wants to sue (eloitte when 3ero. goes bankrupt 7ecause (eloitte knew they were
auditing to benefit the banks in town and they could see the reliance, a duty is owed
b $n the conte.t of lawyer/client relationships:
C. Interference 6ith Contractual 4elations !"# $3 C&
' )wo ele*ents:
a
b
EXAMPLE: (inCo approaches 3avier Co and says that they want a kind of widget )hey knew that
3avier has a contract with +ortie Co to sell all of their widgets (inCo says they will pay 3avier 1 ti*es
the a*ount +ortie is paying and 3avier agrees +ortie will win if they sue (inCo
%. Interference 6ith Pros)ecti#e Economic Ad#anta$e !"# $3 (&
' )his tort protects the probable ;e.pectancy< interests of future contractual relations of a party
/ +laintiff can prevail only by showing that the defendant:
a
b
H&P'THETICAL
(eena really wants to get a job as an associate at a large Washington law fir* 0ro* a friend of hers
at the fir*, (eena learns that her *ain co*petitor for the job is +aul Concerned that +aul will beat
her out for the job, (eena starts a ru*or that +aul is unreliable and lied about being ad*itted to the
bar +aul does not get the job Will he have a cause of action against (eena for interference with
prospective advantage?
E. In3urious +alsehood 1Trade %is)ara$ement2 !"# $3 2&
' +laintiff *ust prove:
a
b
c
d
EXAMPLE: "wner of Music Co*pany, "wen, is approached by Connie who asks if they have the 7arry
Manilow/#ady :aga duets "wen says no and Connie asks if +arker >ecords does "wen knows that
they do, but does not want to give the* business and says no $f +arker finds out, they could recover for
injurious falsehood
X. MISCELLANEOUS TORT CONCEPTS
A. Vicarious Liability !"# 3 %&
' Em)loyer8Em)loyee 1Respondeat Superior2
a
EXAMPLE: Hinny is driving a van for (o*ino’s (rives negligently and collides with +alethia Hinny is
negligent in scope of e*ploy*ent and +alethia can sue (o*ino’s 7y virtue of being an e*ployer, they
are vicariously liable
b 2*ployers can seek inde*nity fro* e*ployee but rarely do so
c 2*ployers can be directly liable if they are negligent in hiring
EXAMPLE: $f (o*ino’s hired Hinny when they knew that he was a bad driver or failed to do adequate
background checks, they will be directly liable
d $ntentional torts co**itted by an e*ployee:
!'& EXCEPTI'":
EXAMPLE: 7ouncer at a bar co**its a battery when ejecting an unruly patron 7ar owner could be
vicariously liable even though it was an intentional tort
/ Inde)endent Contractor
a
b Whether a person is an independent contractor rather than an e*ployee depends on:
1 Parent8Child
a
(. Abatement8,ur#i#al of Action and !ron$ful %eath !"# 3 C&
' Co**on law:
a
/ 8urvival 8tatutes:
a
1 Wrongful (eath 8tatutes:
a
4 #oss of Consortiu*:
a
EXAMPLE: (eirdre is driving negligently and she hits and severely injures +oinde.ter 6e is in great
pain, is in the hospital for si. *onths and then dies fro* the injuries 6e has a wife and *inor child
"nce +oinde.ter has died, the estate can continue his clai* through a survival statute 6is wife can
bring an action for loss of consortiu* for the si. *onths he was in the hospital "nce he dies, his wife
and child can both bring a clai* for wrongful death, suing for own injuries suffered

Sign up to vote on this title
UsefulNot useful