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TORTS

INTRODUCTION

A. APPROACH:
(1) Cause of Action – Preponderance of the evidence  more likely than not [i.e. 50%+] that facts
are as offering party purports them to be. Some cases CCE e.g. Def. actual malice
i. Prima Facie Case – P proves each element by preponderance
ii. Defenses – once prima facie case is established, D can raise defenses by preponderance
(2) 3rd Party liability
(3) Remedies
B. IMMUNITIES: P barred from bringing suit, regardless of accusation, if D claims absolute immunity.
(1) Common Law: Charities, spouses [suing each other], Parents of minors, government.
(2) Modernly: Most jxs removed charity & spousal; Tort actions allowed between underage
children and parents for intentional torts; Federal Tort Claims Act is a limited waiver of
immunity for acts carried out during course of executing or implementing governmental policy.

INTENTIONAL TORTS

A. PRIMA FACIE CASE: (1) Voluntary act (2) Intent (3) Causation /(4)/ Damage
(1) Intent: P only needs to show D intended to commit the tortious act. Everyone has the capacity to
commit an intentional tort; neither infancy nor insanity is a defense.
i. Specific Intent: D intended to bring about specific consequences of act
ii. General Intent: D knew or believed consequences of act were substantially certain to
result
1. D knew or believed there was a high probability that result would occur
iii. Transferred Intent: D’s intent can be transferred from one tort to the tort committed
and/or from one person to the person actually harmed
1. ABCForLife – Assault, Battery, Chattels, False Imprisonment, Land

B. BATTERY: (1) Intentional (2) voluntary act that (3) causes harmful or offensive contact (4) w/ P’s
person
(1) Intent: (1) to harm/offend (2) to make contact
(2) Causation: direct or indirect contact – causing the force that gives rise to the H/O contact
(3) Harmful or Offensive: RPP w/ ordinary sensibilities would think contact H/O
i. Offensive: Unpermitted
(4) P’s Person: anything connected to P’s person [hat/plate]
i. Awareness: P doesn’t need awareness of battery at time it occurred. Can be unconscious.
(5) Damages: Actual damages not required. Can be nominal. Punitive if D acted w/malice.

C. ASSAULT: (1) Intentional (2) voluntary act that (3) causes P to feel reasonable apprehension (4) of an
immediate harmful or offensive contact.
(1) Act: Words are insufficient unless coupled with overt act.
(2) Reasonable: P reasonably expects it to result in immediate HOC. No exaggerated fears unless D
knows of P’s unreasonable fears and uses it to cause apprehension.
(3) Apprehension: P knows of D’s act and D has apparent ability to cause HOC. Words can negate
apprehension.
(4) Immediate: Imminent HOC. Threats of future harm not enough.
(5) Damages: Actual damages not required. Can recover nominal. Punitive if D acted w/malice.
D. FALSE IMPRISONMENT: (1) Intentional (2) voluntary act or omission that (3) causes P to be
confined or restrained, even a briefly, (4) to a bounded area (5) with no known reasonable means of
escape.
(1) Act/Omission: (1) Physical restraint/confinement (2) threat of immediate harm to
P/family/3P/property [not economic well-being e.g. lose job/future threat/moral pressure] (3)
assertion of legal authority or (4) omission when there was an express or implied understanding
that D would act [duty].
(2) Confined or Restrained: movement must be limited NOT mere inconvenience to leave. P must
be aware of or harmed by confinement.
(3) Bounded Area: (1) physical enclosure (2) removal of means of exit [taking away crutches]
(4) No known reasonable means of escape: Means of escape that are physically or mentally
harmful to P/property/threaten safety of 3P are not reasonable. P must know of reasonable means
of escape for D to escape liability.
(5) Shopkeeper’s Privilege: A store may detain a suspected thief if store (1) has reasonable cause to
believe a theft occurred (2) detains suspect for a reasonable time necessary to investigate whether
theft committed (3) manner of detention is reasonable and (4) only non-deadly force is used.
Shopkeeper may be held liable for harm caused by acts of employee in scope that exceed the
privilege.
i. Reasonable time and manner is that which is reasonably necessary to investigate
whether P committed the theft.

E. IIED: (1) Intentional or reckless (2) extreme and outrageous conduct that (3) causes (4) P to reasonably
suffer from severe emotional distress [damages]
(1) Intentional or reckless: (1) intent to cause emotional distress or (2) reckless disregard for that
consequence. Intent can be inferred from D’s knowledge of sensitivity/vulnerability to ED.
(2) Extreme & outrageous: Conduct that exceeds bounds of decency; would not be tolerated in
civilized society. Mere insults are generally insufficient.
i. Knowledge: If D knew or should have known of P’s vulnerability/hyper-sensitivity to
emotional distress, he is liable for such EOC.
ii. Repetitive: Continuous or repetitive conduct can give rise to EOC.
iii. Special P: P member of a fragile class – elderly, child, pregnant, racial slurs
iv. Special D: (1) misuse of authority [teacher, caretaker, boss] (2) business conduct
[collections]
v. D common carrier/innkeeper: Held to higher standard. Slight emotional distress is
enough. Can be non-EOC. P must be patron or passenger. Employee liable.
(3) Damages=Severe ED: Actual damages required. P must clearly suffer severe ED, but doesn’t
need physical symptoms. More emotional distress than a reasonable person could be expected to
endure. Can be humiliation, embarrassment, anger, grief

F. BYSTANDER IIED: D (1) intentionally or negligently (2) engaged in conduct that seriously injured or
killed (3) a close relative of P (4) in P’s presence (5) D knew of the familial relationship and of P’s
presence (6) P actually suffered severe ED [actual damages].
(1) Serious Injury or death: Injury of 3P can result from product defect. Bystanders cannot recover
for medmal.
(2) Close relation: not required if P shows D had a design or purpose to cause P SED – i.e. P must
show that D’s purpose in acting was to cause P’s distress.
(3) Presence: P must actually perceive the injury-causing event.
(4) Damages: Physical manifestation isn’t required. Actual damages must be proved.

G. TRESPASS TO LAND: (1) Intent to (2) physically invade P’s property by either (a) entering or
remaining on P’s land or (b) directing an object or person to enter or remain on P’s land (3) without
permission or the right to enter.
(1) Intent: D doesn’t need to know the land belongs to another.
(2) Standing: any P who has actual or constructive possession of the property – don’t have to own
(3) Physical Invasion: Only tangible items. Some modern courts allow particles and gasses. Light,
sound, and smell are not actionable [seek nuisance].
(4) Property: Includes surface, air, subterranean space to a reasonable distance.
(5) Permission: Trespass can be found if D entered the land [or directed trespass] w/ permission but
remained on the land beyond the permitted period/beyond scope of permission.
(6) Damages: No actual damages required. Can get nominal damages. Punitive if w/malice. Harm is
the invasion of the exclusive right of possession.

A. TRESPASS TO CHATTEL: (1) Intentional act (2) that slightly interferes with P’s use or possession of
personal property (3) causing (4) actual interference with P’s right to use or possession of the chattel
[damages].
(1) Intent: intent to do the act that interferes. Not necessarily intent to interfere.
(2) Interference: dispossession – depriving P of his possessory right; intermeddling – damaging P’s
chattel.
(3) Damages: Minor interference or slight damage. Length of time irrelevant; D’s possession of P’s
chattel for brief period sufficient. The amount of time for interference is relevant to determine
the amount of damages owed. P can recover cost of repair or fair rental value @ time of
trespass.

B. CONVERSION: (1) Intentional act (2) that substantially interferes with P’s use or possession of
personal property (3) causing (4) actual and substantial interference with P’s right to use or possession
of the chattel [damages].
(1) Interference: Intent to do the act that substantially damaged, altered, transferred, withheld for
substantial time.
(2) Mistake: D’s mistake as to who rightfully owns or possesses is not a defense.
(3) Damages: Must be longer and/or more damaging use of P’s chattel. P can recover the FMV at
the time of conversion OR replevy the chattel.

C. DEFENSES: David N2A3P3S in the Con3Do


(1) Discipline: parent/teacher can use reasonable force in disciplining children.

(2) Necessity: Necessity is a defense to intentional property torts [conversion, trespass to


land/chattel] in which D damages P’s property in an effort to avoid a greater danger. Necessity
always prevails over defense of property. D’s interference with P’s property must (1) be
reasonably necessary to avoid an immediate threatened injury to public/private and (2) the
threatened injury must be more serious than the interference undertaken to avert it.
i. Public: to protect the community/public at large. Absolute defense – no liability for
damages caused.
ii. Private: to protect self/individual/small group/property. Limited defense – P can recover
actual damages for harm caused but NO punitive or nominal damages UNLESS D’s act
benefitted P.

(3) Arrest Privilege: Depending on the (1) status of the defendant making an arrest (2) the nature of
the purported crime (3) the timing of its commission (4) and the circumstances, an individual
may be privileged to use a reasonable amount of force to carry out a warrantless arrest.
i. Felony in Progress: Police & private citizens are privileged to carry out a warrantless
arrest for a felony if they (1) reasonably believe arrestee is committing or about to
commit a felony and (2) in the arrestor’s presence.
1. To prevent or interrupt dangerous/violent felony = deadly force if no other
option available
ii. Felony completed:
1. Police are privileged to carry out a warrantless arrest for a completed felony if
officer reasonably believes (1) crime has been committed and (2) that arrestee
committed it.
a. Officer can be mistaken as to (1) and (2); all that is necessary is reasonable
belief.
b. Deadly force if (1) arrestee poses significant threat of death/serious
bodily harm to officer or others and (2) deadly force is reasonably
necessary to prevent arrestee from fleeing or harming others.
2. Private citizens are privileged to carry out a warrantless arrest for a completed
felony if (1) they reasonably believe crime has been committed by arrestee and
(2) felony has actually been committed.
a. Mistaken belief as to correct person is OK, as long as reasonable belief.
NO mistake for commission of crime.
b. Deadly force only if (1) arrestee actually committed a violent/dangerous
felony (2) deadly force was reasonably necessary to prevent arrestee
from fleeing/harming others.
iii. Misdemeanor Arrest: Police & private citizens are privileged to carry out a warrantless
arrest for a (1) misdemeanor that amounts to a breach of the peace and either/or (2) crime
occurred/is occurring in arrestor’s presence or (3) the crime was completed and the arrest
was carried out immediately after completion.
1. Officer or private citizen can use reasonable non-deadly force.
iv. Subsequent misconduct: Arrest may be privileged, but actor can still be liable for
subsequent misconduct e.g. failing to bring before magistrate; unduly detaining party.

(4) Property: NO deadly force, deadly traps, etc. If in own home, it is S-D not D-prop – deadly ok.
i. Defense of Property: D can use only reasonable non-deadly force to protect property. If
P is privileged to enter D’s property, D cannot use this defense [i.e. P recapturing
converted/trespassed chattel on D’s land]. No mistake allowed.
ii. Recapture of Chattel: D is justified in using reasonable, non-deadly force to recover
chattel wrongfully taken if (1) D is in hot pursuit [immediate aftermath of taking] (2) P is
original wrongdoer or 3P who knows chattel wrongfully obtained (3) D makes timely
demand for return unless futile or dangerous. If mistaken as to P’s right to possess the
chattel, he will not be justified, no matter how reasonable the mistaken belief.
iii. Entry onto Land to Recapture: D can use reasonable, non-deadly force to enter the land
of another to recapture chattel if (1) entry done in a reasonable time and reasonable
manner (2) D isn’t to blame for chattel being on the other’s land [otherwise use legal
process].
1. Landowner wrongdoer: If landowner took D’s chattel or allowed D’s
wrongfully taken chattel to be kept on her land, D isn’t liable for damages caused
in entering and recapturing
2. Innocent Landowner: D keeps privilege to enter land, but must give notice to
landowner – if he refuses, D can enter in reasonable time & peaceful manner. D
liable for damages caused on land in recapture.

(5) Self-Defense: (1) D reasonably believed, even if mistaken, that force was necessary to protect
self from immediate harm [not already done] and (2) used force reasonably proportionate to the
harm [even deadly]. D does not have a duty to retreat [stand your ground stats]. Can be defense
to FI and assault if preventing P from doing harm.
i. Minority Retreat: duty to retreat if (1) D not in home and (2) can retreat safely.
ii. Original Aggressor: Original aggressor P can only use self-defense if he used non-
deadly force, and D responded with deadly force. IL Original aggressor has a duty to
retreat if he can do so safely.

(6) Consent: If P consents to D’s otherwise tortious conduct, D is not liable for the act. (1) express
(2) apparent (3) and implied by law. Invalidated by (1) duress – imminent threat of force (2)
fraud/misrep in central matter to interaction (3) D knew of P’s mistaken belief in central matter
(4) illegality (5) incapacity and (6) exceeding scope.
i. Express: P’s objective manifestation of consent through verbal, written, or physical
communications that convey explicit consent to the challenged conduct. P must have
capacity to consent.
ii. Apparent/Implied: D can reasonably infer P’s consent from custom or P’s
observable/objective conduct in the context of the surrounding circumstances. [e.g.
participate in activity or place where minor torts are common]. P must have capacity to
consent.
iii. Implied by law: Action is necessary to save a person’s life or some other important
interest in person or property – P does not need capacity to consent.
iv. Invalidating consent: Duress, fraud or mistake, illegality, incapacity, exceeding scope.
1. Duress: Consent is not a defense if obtained by threat of imminent use of physical
force. NOT future threat or threat of economic harm.
2. Fraud/Mistake: Consent invalid if (1) P’s consent obtained through D’s
fraudulent misrep of a matter central to the interaction between P-D [not
collateral] or (2) D actually knew that P’s consent was based on mistaken belief as
to a central matter and didn’t correct that belief.
a. Look @ action in negligence if D should have known.
3. Illegality: Intentional torts that amount to a criminal act cannot be consented to.
a. Minority: Criminal act that is also an intentional tort can be consented to
for purposes of relieving D of civil liability unless P is a protected class of
criminal statute.
4. Incapacity: Incapacitated P’s cannot consent.
a. Children: age of capacity depends on circumstances. The more serious the
harm, the older the child must be to give valid consent.
b. Mental deficiency/insanity:
c. Intoxication:
d. Unconsciousness: except in emergencies where immediate action is
necessary to save P’s life.
5. Exceeding Scope of consent: D can be held liable for conduct that exceeds the
scope of P’s consent. Often arises in medical surgeries when P consents to certain
surgery and doctor does a little extra/different procedure.

(7) Defense of Others: D steps into shoes of intended target 3P. If D reasonably believed that 3P
would be justified in using reasonable force in her own defense, he can use the same force that
3P could have reasonably used in protecting from imminent harm. CL – Mistake as to 3P’s right
to self-defense, is not defense of others, regardless of reasonableness. IL – If D mistaken as to
3P’s right to self-defense, D is justified in using defense-of others as long as the mistake was
reasonable.
DEFAMATION:

A. PRIMA FACIE CASE: A (1) defamatory statement (2) of and concerning P (3) published to a 3P (4)
negligent disregard for truth and (5) P suffered harm to her reputation [damages] /(6)/ Falsity /(7)/ Fault
[actual malice/negligence] DEFENSES: (1) Consent (2) privilege2 (3) truth (4) opinion

B. DEFAMATORY STATEMENT: False and derogatory statement of fact, not opinion, that, if believed,
would cause harm to P’s reputation.
(1) Proof: P only needs to show that a significant minority of right-thinking [reputable] people
would form a negative opinion of P, if statement were believed.
(2) Roles: Judge determines whether it could be defamation; jury determines if it in fact is.
(3) Inducement & Innuendo: If statement could be interpreted in more than 1 manner i.e. not
defamatory on its face, P can establish defamatory nature by pleading additional facts
[inducement] to establish defamatory meaning [by innuendo] – just needs to show that at least
one person understood it to be defamatory.

C. OF AND CONCERNING P: Statement must be reasonably understood to refer to P/small group of Ps.
(1) Pleading Colloquium: P Not explicitly mentioned then introduce extrinsic evidence to prove it
refers to P.
(2) Group def: If defamatory towards a group, P must establish he is a member of that group to
have standing. If the group is large, cannot pursue a defamation action.

D. PUBLICATION: D intentionally or negligently communicated the def statement to a 3p.


(1) Primary publishers
(2) Republishers: those who repeat/republish another’s defamatory statement are generally liable
for def just as the primary speaker even if uses source or says doesn’t believe it. The primary
publisher is also liable for the republication if the republication is reasonably foreseeable.  if
the original statement is libel, the republication will be libel even if oral – vice versa for
slander…
(3) Secondary publisher: e.g. sells paper, plays tapes – liable if they knew should have known of
the def nature of content.
(4) ISPs: protected by intermediary immunity from def statements by users.

E. NEGLIGENCE DISREGARD FOR TRUTH: IL always requires negligence standard, regardless of


whether matter of public concern. If D negligent, only actual injury damages are recoverable.

F. MATTER OF PUBLIC CONCERN: When statements are made regarding a public figure, public
official or matter of public concern the first amendment protects D’s free speech and requires that
plaintiff meet a higher burden of proof by also proving falsity and fault.
(1) Public official or Figure: official/figure must prove by clear and convincing evidence that the
(1) statement was false and (2) made with actual malice – i.e. D subjectively (a) knew the
statement was false or (b) made the statement with reckless disregard as to its truth
i. Public figure: Pervasive fame or notoriety; voluntarily assumes central role in pub matter
1. E.g. celebrity, political candidate, baseball player.
ii. Public official: Public office holder
iii. Deliberately altering quote: if caused a material change in meaning conveyed it is
malice.
(2) Private Person/Matter of public concern: Private plaintiff must also prove that the (1)
statement was false and (2) D negligently made the statement
i. Private person/Public concern: Private person makes statement that relates to an
issue/event that affects the public interest or that the public has a need to know
1. Public = community or national
ii. Damages: If P proves D made statement w/ actual malice [knowingly/recklessly] then
general damages will be presumed. If P only proves negligence, must also prove special
damages/actual harm.

G. DAMAGES:
(1) Type of Def: P’s burden of proving damages depends on the type of defamation
i. Libel: Written/printed def language or pictures. Sufficiently permanent def that is widely
disseminated [tv recordings/radio] Maj actional per se; damages presumed.
1. Per Se: defamatory on its face. No interpretation or explanation is required to
understand the defamatory meaning of the statement. No special damages.
2. Per quod: defamatory meaning can be discerned in light of context/circumstances
in which statement was made, but not defamatory on its face. Majority: P doesn’t
have to prove special damages.
ii. Slander: Spoken defamatory language.
1. Per se: Spoken def that is considered inherently harmful. No special damages
required. Found where D’s statement (1) attacks P in a way that directly calls P’s
competence to perform job into question (2) P infected with loathsome disease
e.g. leprosy or venereal (3) P engaged in serious sexual misconduct
[cheating/whore] (4) P engaged in serious criminal misconduct [moral turptitude]
(2) General Damages: Harm to P’s reputation, or emotional/psychological trauma suffered,
personal humiliation.
i. Presumed in (1) All libel (2) slander per se (3) Private person/public concern & proved
actual malice (4) public official/figure.
(3) Specific Damages: Actual damages for specific economic losses caused by or resulting from the
defamation. Must be proved in (1) slander (2) libel per quod [min] (3) private person/public
concern & only proved fault of negligence.
(4) Punitive damages: (1) public official/figure for actual malice (2) Private P/Pub concern &
shows actual malice (3) Private P/Private concern & Actual malice.
(5) Jury Considerations: Jury can consider good faith, retraction, anger of speaker provoked by P
when deciding on damages

H. DEFENSES TO DEFAMATION: (1) Consent (2) privilege2 (3) truth (4) opinion
(1) Absolute Privilege: Applies when public policy or the administration of justice demands that the
speaker be given complete immunity. Speaker is completely protected from liability, no matter
the falsity or outrageousness of the statement or the speaker’s intent.
i. Witnesses in legislative, executive, judicial proceedings
ii. Reporting of criminal activity to officer
iii. Proceedings before administrative licensing bodies
iv. Statements by government officials in their official capacity
1. Legislators speaking in legislative proceedings
v. Compelled publications.
(2) Qualified Privilege: Acts to protect a speaker who has a public or private duty to make the
statement, or feels a moral or social obligation to do so. Protection intended to promote
truthfulness and fair comment and criticism. Protected only if (1) the speaker acted within the
scope of the privilege and (2) in good faith – shown by an honest belief in the truth of the
statement, without malice, or without excessive republication.
i. Statements made in:
1. Official proceedings – excuses accurate reports only
2. Public interest – statements made to those acting in public’s interest; fair
comment and criticism but the matter commented on must be of general public
interest e.g. book reviews or articles on public institutions
3. Interest of the publisher – i.e. statement made to defend own actions, prop,
reputation
4. Interest of recipient – recipient has an interest in the information and it is
reasonable for the D to make the publication i.e. D is not an intermeddler
a. Statement made by credit bureau to a customer; statement by former
employer to prospective employer about a job applicant
(3) Truth: [CL only; part of PFC for 1st Am.] If D proves that the statements made were true, it is a
complete defense.
(4) Opinion: Only a statement of fact will support a def claim. A statement of opinion is not
actionable.
i. Minority: any statement that suggests/hints at a factual basis for the opinion claimed will
support a defamation claim.
ii. Determination: Fact vs opinion depends on the context in which it was made. Would a
reasonable member of the community believe the speaker to be in a position to know
whether the statement was true? If so, it is likely factual.

INVASION OF RIGHT TO PRIVACY

A. COMMERCIAL APPROPRIATION: (1) D Appropriated P’s name, face or likeness (2) for D’s
commercial promotions/advertisements of goods/services and (3) P did not consent. Newsworthy
exception: Does not apply to journalistic articles or books written about P for reporting news.
(1) Commercial: promotion of goods or services or advertisement. Mere economic benefit not
connected with promotion of goods/services alone isn’t enough.

B. INTRUSION UPON SECLUSION: (1) D intentionally intruded upon P’s private affairs
[solitude/seclusion] and (2) the intrusion would be highly offensive to a reasonable person.
(1) Zone of privacy: Intrusion must be in a place where P can reasonably expect seclusion/privacy.
NOT in public.
(2) Highly offensive to RPP: e.g. peeping, eavesdropping, hidden cameras.
(3) Nature: can be physical intrusion [can be trespass too] or non-physical [photo window of home]
(4) ** if this doesn’t work, consider IIED.

C. FALSE LIGHT: (1) widespread publication of (2) false or misrepresented information that attribute to
P views he does not hold or actions he did not take (3) that would be highly offensive to a reasonable
person. If the matter is a matter of public interest, both public and private P’s must prove actual malice
[knowledge of falsity or reckless disregard for its truth]. IL: Always requires proof of actual malice.
(1) ** use when defamation will not work.

D. PUBLIC DISCLOSURE OF PRIVATE FACTS: (1) D publicly disclosed private facts about P (2)
publication would be highly offensive to reasonable person of ordinary sensibilities (3) facts do not
legitimately affect the public’s interest. Newsworthy exception: No liability if facts were newsworthy.
(1) NOT Information obtained from public records; public activities not objectionable.
(2) Publicized: made available to a public audience.
(3) Truth: is not a defense. Liability will still attach.
(4) Public matter: 1st amendment limitations probably apply. i.e. actual malice/falsity.

E. CAUSATION: All privacy torts. Invasion of P’s privacy interest must be proximately caused by D’s
conduct.

F. DAMAGES: P doesn’t need to prove special damages. Proof of emotional distress/mental anguish is
sufficient.
(1) The right is a personal one; doesn’t extend to family members; cannot survive P’s death. Not
assignable and not applicable to corporations.

G. DEFENSES: (1) Consent (2) Qualified Privilege (3) Absolute Privilege.

MISCELANEOUS INTENTIONAL TORTS

A. INTENTIONAL MISREPRESENTATION: D (1) misrepresented a material past or present fact to P


(2) scienter – knew/believed statement was false or acted with reckless disregard as to its truth (3)
intended to induce P to act or refrain from acting in reliance on the statement (4) causation – P actually
relied (5) P’s reliance was justified (6) P suffered actual economic harm [damage]
(1) No defenses.
(2) Duty to disclose: No general duty to disclose a material fact unless D: (1) stands in fiduciary
relationship (2) is selling real property and knows P is unaware of and cannot reasonably
discover material info about the transaction (3) has spoken and her utterance deceives P (4)
physically conceals a material fact.
(3) 3P Reliance: if D could reasonably foresee 3P relying on misrep. D is liable.
(4) Justifiable Reliance: Fact: if misrep is re a fact, reliance is justified unless P knows statement is
false. Opinion: P is not justified in relying on D’s statement of opinion re value, quality, etc.
except: (1) D has superior knowledge (2) D owes fiduciary duty (3) D-P have a special
relationship so that P trusts D (4) D gives P advice re a deal with 3P without telling P that D has
an interest in the deal.

B. NEGLIGENT MISREPRESENTATION: (1) Misrepresentation by D in a business or professional


capacity (2) breach of duty toward particular P [i.e. D knew P could rely on misrep] [no 3P] (3) actual
and justifiable reliance by P [causation] (5) actual pecuniary damages.

C. INTERFERENCE WITH BUSINESS RELATIONS:


(1) Intentional Interference with Contract: (1) a K existed between P and 3P (2) D knew or
should have known of the K’s existence (3) D intentionally and improperly interfered w/ the K
(4) the K was in fact disturbed (5) P suffered economic harm.
i. Interference: D induces 3P to breach the K or makes it impossible for the K to be
performed.
(2) Intentional interference with prospective economic advantage: (1) existence of an economic
relationship between P and 3P (2) relationship contained an expectancy of economic benefit to P
(3) D knew of the relationship and expectancy (4) D intentionally interfered with the relationship
(5) the relationship was in fact disturbed (6) the P suffered economic harm.
(3) Defense Factors to consider: (1) fair & ethical competition in seeking same prospective
customer (2) reasonable action to protect the financial interests of a 3P D responsible for (3)
reasonable action to protect one’s own financial interests (4) interference w/ an illegal K (5) used
commercially acceptable means of persuasion vs illegal or threatening tactics.
i. Competition is highly valued by courts. As long as D did not engage in unfair or
deceptive practices, competition will be the strongest defense.

D. MALICIOUS PROSECUTION: (1) D instigates prosecution [i.e. files complaint with police] (2) The
criminal case was terminated in P’s favor (3) D did not have probable cause to believe P committed the
crime [i.e. knew P wasn’t guilty or had insufficient facts to believe in P’s guilt/fault] (4) D acted with an
improper purpose [reason other than pursuit of justice] (5) P was harmed.
(1) Prosecutor Immunity: Prosecutors immune from tort liability. Look @ professional conduct
though.
E. WRONGFUL USE OF CIVIL PROCEEDINGS: (1) D instituted civil proceedings against P (2) civil
case terminated in Ps favor (3) reasonable belief did not exist for the civil action (4) D acted w/
improper purpose and (5) P was harmed.

F. ABUSE OF PROCESS: (1) D wrongfully used the legal process for an ulterior purpose (2) definite act
or threat against P to accomplish an ulterior purpose that harms P [damages].

NEGLIGENCE

A. PRIMA FACIE CASE: P must prove, by a preponderance of the evidence [more likely than not] that
(1) D owed P a duty to avoid acting in a manner that would create an unreasonable risk of injury (2) D
breached that duty (3) D’s breach was the actual [cause-in-fact] and proximate [legal cause] cause of P’s
injury (4) P suffered actual harm [no nominal damages]
(1) Basics of Duty: Negligence analyzed under objective standard – compares D’s actions to a RPP
under similar circumstances.
i. Negligence Per se:
ii. Landowners:
iii. Nonfeasance:
iv. Duty Arising from a promise:
(2) Defenses: (1) Primary assumption of risk (2) Contributory Negligence (3) Secondary assumption
of risk (4) Superseding cause [cf proximate cause]

DUTY

B. DUTY BASICS: A legally enforceable obligation that requires an individual to exercise reasonable care
in the conduct of his activities so as to avoid creating an unreasonable risk of harm to others. D must act
as an RPP would. Such duties are owed to all foreseeable plaintiffs and liability depends on whether D
breached the applicable standard of care.
(1) Who is RPP: D’s are charged w what they actually knew/observed and with those things that
RPP would have known & perceived. If D has superior knowledge, intelligence, memory,
perception, judgment he will be held to that standard.
i. Physical abilities: If D is deficient, too bad. RPP standard is subjective to the extent that
if D has a physical deficiency or disability, his conduct is measured against that of a RPP
with his physical characteristics. If D has superior physical characteristics he is held to
the standard of an RPP w/ such exceptional physical abilities.
ii. Mental Capacity: No allowance for D’s mental deficiencies. The mental capacity of an
ordinary person is what fact-finders’ consider. They cannot consider D’s particular
mental condition, stupidity, or inexperience. [Except children]
(2) Foreseeable Plaintiffs: A D owes a duty to protect foreseeable victims against foreseeable risks
of harm.
i. Zone of danger [maj. Cardozo]: A duty of care is owed only to those who could
foreseeably be harmed by the D’s conduct i.e. those within the zone of danger.
ii. Whole world [min. Andrews]: A duty of care is owed to everyone in the world to avoid
engaging in unreasonable conduct. Thus, anyone harmed by the conduct is foreseeable.
iii. Specific Situations re Foreseeability:
1. Rescuers: If D puts himself or another in danger and a 3P attempts to rescue, D
will be liable for the rescuer’s injury even if unforeseeable. [Danger invites
rescue] Firefighters Rule: Firefighters and police may be barred from recovering
for injuries caused by the risks of a rescue.
2. Prenatal Injuries: Duty of care is owed to a viable fetus. Where D fails to
diagnose a congenital defect or properly perform a contraceptive procedure:
a. Wrongful life: Child cannot recover.
b. Wrongful Birth & Pregnancy: Parents can recover damages for additional
medical expenses and pain and suffering from labor. Cannot recover
ordinary child-rearing expenses.
3. Economic beneficiaries: A 3P for whose economic benefit a legal or business
transaction was made [e.g. beneficiary of will] is a foreseeable P if their harm is
forseeable.

C. GENERAL DUTY OF CARE: D has a duty to act like a RPP under the circumstances. An RPP is
someone with D’s physical characteristics, but with the knowledge and mental capacity of an ordinary
person. Fact finders cannot consider D’s particular mental condition, stupidity, or inexperience.

D. CHILDREN: Held to a subjective standard of care of a like child of similar age, education, intelligence,
and experience. Generally, children under 7 are irrefutably presumed incapable of negligence.
Exception: children engaged in risky/dangerous conduct that is considered an adult activity are held to
an adult standard of care.
(1) Tender Years Doctrine: IL finds that a child under 7 is presumed not responsible for his acts.
Presumption remains between 7-14 but can be overcome by proof of intelligence/capacity of the
child. Children over 14 or children who engage in adult activities are held to an adult standard.

E. COMMON CARRIERS & INNKEEPERS: Held to a particularly high standard of care. They are
liable for even slight negligence to passengers or guests.
(1) Common Carriers: Plane, ship, bus, railroad, elevators, amusement parks/rides etc. Heightened
duty to protect passengers from acts of employees, other passengers, and even 3Ps. Duty arises
only when carrier has actual notice of a danger or notice of facts and circumstances that a danger
probably exists.
(2) Innkeepers: Room & board to transient guests [vs borders]. Heightened duty to protect guest’s
property from loss or injury. Duty to protect guests and keep them safe while at the inn. They are
not insurers, but merely need to exercise reasonable care in protecting the people/prop. Actual
notice of circumstances could create a heightened duty [e.g. code violation resulting in fire; lack
of security from criminals Kim K].

F. PROFESSIONALS: [architects, engineers, accountants, lawyers] Must possess the knowledge and skill
of a member of the profession, in good standing, in similar communities.
(1) Custom: If accused of professional negligence, proof by D that he adhered to industry custom of
the profession conclusively establishes that D acted reasonably and didn’t violate duty of care.

G. PHYSICIANS: Physicians are held to a duty to exercise the same degree of knowledge, skill, and care
that a reasonably well-qualified physician would throughout the national medical community under
similar circumstances. IL applies the local standard of qualified physicians in the same or similar
communities.
(1) Proving Standard: Generally done through expert testimony. It isn’t enough that expert testifies
that he would do it differently – needs to be deviation from standard. If competent medical
authority is divided regarding a practice or procedure, D cannot be liable for using one practice
over another.
(2) Specialists: held to the national standard of care throughout their specialties.
(3) Emergency medical care: Good Samaritan statutes protect doctors who render emergency aid
in good faith. They are generally protected unless grossly negligent.
(4) Alternative medicine: Standard is that of the school/tribe/coven to which D belongs. Generally,
no duty to refer patient to western/traditional medicine.
(5) Duty to give informed consent: Physicians must disclose information about the patient’s
treatment and obtain the patient’s informed consent before performing procedures.
i. Physicians rule: A Dr’s duty to disclose is determined by the level of disclosure
customarily provided to patients by other doctors in the national field. Determined
through expert testimony.
ii. Reasonable patient rule: A dr’s duty to inform is measured by what a reasonable patient
would need to know in order to make an informed and intelligent decision about the
proposed treatment.
iii. Breach: A doctor is liable for failure to inform if (1) the patient is harmed by
materialization of that undisclosed risk (2) patient demonstrates that he would have
refused treatment if he had been informed and (3) a reasonable person would have
refused treatment.

H. DRIVERS DUTY TO PASSENGER: A guest in a car is owed an ordinary duty of care. SOME states
driver is liable to non-paying passengers only for reckless conduct.

I. BAILMENTS: Owed by Bailee (1) Sole benefit of bailor – low standard of care/gross negligence
(2) Sole benefit of bailee – high standard of care/slight negligence (3) Mutual benefit – [e.g. for hire]
ordinary standard. Owed by bailor (1) Sole benefit of bailor – bailor must inform bailee of known,
dangerous defects in chattel (2) Bailment for hire – bailor must inform bailee of defects of which he
should be aware.

J. EMERGENCY: D must act as an RPP under emergency circumstances except when D created the
emergency.

K. STATUTORY PER SE NEGLIGENCE: Statutes can be used to define the standard of care and
replace the general standard. Violation constitutes negligence per se, P only needs to prove causation
and damages. Compliance w a statute does not automatically relieve D of liability.
(1) Requirements: (1) Statute provides a criminal penalty/fines (2) standard of conduct is clearly
defined in the statute (3) P is within the class of people the statute was designed to protect (4) the
statute was designed to protect against the type of harm P suffered.
(2) Excuses for violation: D wont be negligent if (1) violation is reasonable bc of D’s incapacity (2)
D neither knows or should know of the occasion for compliance (3) D unable, after reasonable
diligence, to comply (4) D confronted by an emergency that was not of his own making (5)
compliance would involve a greater risk of harm to D or to others.
(3) IL: A violation of ordinance or statute designed to protect life or property is only prima facie
evidence of negligence; not per se negligence.

L. NEID: (1) D was negligent [Duty + Breach] (2) Negligence resulted in a “near miss” of causing serious
bodily harm to P [i.e. P is within the zone of danger] (3) D’s negligence actually and proximately caused
P to suffer severe emotional distress (3) ED caused a physical manifestation of injury or ailment in P.
(1) Physical Manifestation: ED must lead to physical manifestation instantaneously or even days
later – eg. heart attack, miscarriage. Non-physical symptoms like sleeplessness, anxiety,
depression are insufficient [more convincing if a medical diagnosis]. You take your P as you find
him eggshell rule.
i. Exceptions: No physical manifestation or zone of danger required where P demonstrates
that ED was caused by (1) negligent handling of a close relatives corpse (2) Erroneous
notification of a close relatives death.
(2) Bystander recovery: A P bystander outside the zone of danger of physical injury who sees the D
negligently injuring another can recover if (1) P and the injured person are closely related (2) P
was present at the scene of the injury (3) P personally observed or perceived the event (4) IL: P
must be in the zone of danger.
(3) Special relationship: (1) D’s duty arises from a special relationship between P-D such that D’s
negligence has great potential to cause ED (2) D directly causes P severe ED that leads to
physical symptoms. [e.g. Dr misdiagnosis that patient has terminal illness]

M. AFFIRMATIVE DUTIES TO ACT [NONFEASANCE]: Generally there is no affirmative duty to


act. However, there are many exceptions.
(1) Special Relationship: (1) Innkeeper – guest (2) Carrier – passenger (3) Landowner – lawful
entrant (4) Employer – employee (5) custodian – charge (6) Landlord – Tenant (7) School –
student (8) Business/shopkeepers – Patrons
(2) D owes a duty to protect P from 3P:
i. Special relationship between P and D: (1) Innkeeper – guest (2) Carrier – passenger (3)
Landowner – lawful entrant (4) Employer – employee (5) custodian – charge (6)
Landlord – Tenant (7) School – student (8) Business/shopkeepers – Patrons
1. Public accommodations: Places of public accommodation have a duty to prevent
injury to guests by third persons. E.g. shops, parks, carriers/inns
2. Host to social guest: No duty, unless host has knowledge of danger.
3. Landlord tenant: Status relationship. Duty owed to keep common areas safe and
when landlord is on notice of previous attacks.
4. School to student: Schools generally owe a duty to protect students from 3P harm
because parents relinquish control/protection of children to school. Duty is
temporally limited to when school is in session and open for activities. It is
geographically limited to the school campus. [not colleges]
ii. Special relationship between D and 3P who harms P: D is liable when (1) D and 3P
have a relationship that justifies imposition of a duty on D (2) D has actual ability and
authority to control 3P’s actions or to warn P[dr/psychiatrist] (3) D knew or should have
known 3P was likely to commit dangerous acts requiring exercise of such control.
1. Doctor’s duty to warn potential V’s of patient: P must be a foreseeable V and D
must be in the best position to warn/prevent harm.
2. Therapist’s duty to warn potential V’s of patient: (1) protection of potential V
outweighs patient confidentiality (2) V must be specific.
3. Parent’s duty to control children: (1) Parents know or should know of specific
danger posed by child (2) parents must have ability to control.
4. LL Duty to control dangerous T: LL must get rid of dangerous T when he knows
T poses a danger to others.
5. Alcohol: (1) if D is a commercial seller, has a duty not to sell to noticeably
intoxicated persons. (2) social hosts are not liable, except if they give alcohol to
minors.
6. Negligent Entrustment: (1) D knows 3P is incompetent/inexperienced/intoxicated
/reckless (2) D gives/lends 3P car/gun/etc. anyways
(3) D creates the peril: One has a duty to assist someone he negligently or innocently placed in
peril.
(4) D Assumes Duty to protect by acting: Once D begins to assist, he must do so with reasonable
care and must continue to assist if stopping would leave V worse off than before D rendered
assistance. Cannot prevent others from aiding P.
(5) Statute requires D to act affirmatively to protect P:

DUTIES OF OWNER/OCCUPIER OF LAND

A. GENERALLY: Owners/possessors of land may have a duty of care for anticipated trespassers and child
trespassers for dangerous conditions on the land.
(1) Liability: Both owner and possessor are liable. Generally, possessor is primarily responsible and
owner is secondarily liable.

B. THOSE OFF THE PREMISES: No duty for natural conditions. Duty to reasonably protect those
outside from artificial conditions. Reasonable care to protect against unreasonable risks to others when
carrying out activities on property.
(1) Natural conditions: At CL, owners do not owe a duty to those outside the property to protect
them against harm caused by natural conditions on the property. In urban areas, L must exercise
reasonable care to inspect the property and protect those outside the property from natural
conditions e.g. falling branches.
(2) Artificial conditions: L has a duty to reasonably protect those outside the prop from harm
caused by unreasonably dangerous artificial conditions.
(3) Activities: L must carry out activities on land in manner that avoids unreasonable risk of harm to
those outside the premises.

C. TRESPASSERS: A person who enters or remains on the land of another without right or permission
[i.e. no consent, exceeds consent, no privilege to be there].
(1) Anticipated trespassers: L who knows, expects, or should know of trespassers presence has a
duty to (1) warn or make safe all hidden artificial conditions that L knows of that could cause
death or serious bodily harm [look for spring guns, traps] and (2) exercise reasonable care when
carrying out activities on prop.
(2) Unknown Trespassers: L generally does not owe a duty to unknown/unanticipated trespassers
but must not intentionally create harmful or artificial conditions for the purpose of injuring
potential trespassers on the property.
(3) Attractive Nuisance: L is liable to a child trespasser for harm caused by a natural or artificial
condition when he fails to use reasonable care or otherwise protect the child if (1) L knows or
should know of a dangerous condition on the property (2) L knows or should know children are
in the vicinity/likely to trespass (3) the condition is likely to cause serious injury if encountered
because the child, due to his youth, does not discover or appreciate the risk of danger (4) the
burden/expense of removing condition or the usefulness of condition is outweighed by the
magnitude of risk of harm.
i. Impossible to remove: If impossible to remove dangerous condition, L must erect barriers
to prevent children’s access.
ii. Attractive: At CL, P had to show that it was the hazardous condition that attracted
children to the land. Modernly, most courts require that injury to a child trespasser was
foreseeable.

D. LICENSEES & INVITEES: (1) Reasonable care in activities carried out on the property (2) duty to
warn or make safe dangerous conditions that L knows or should know of and that are hidden.
(1) Modernly: and in IL, states reject the distinction between licensees and invitees and simply
apply a reasonable person standard to dangerous conditions on the land.
(2) Licensees: Not duty to inspect land or make repairs.
i. Licensee: Person who enters/is present on land with the permission of L, but for the
licensee’s sole benefit, interest, convenience, or gratification.
1. E.g. Social guests, people taking permitted shortcuts over prop, carrying out
activities on land w/ owner’s permission but w/o any benefit to L.
ii. Firefighter’s Rule: Police, firefighters, public safety officers cannot recover for injuries
suffered on the job i.e. in the scope of them fighting fire/preventing harm scope of job.
1. Exception: can recover for harms caused from risks not inherent to the job b/c not
part of the assumed risk [e.g. attacked by owners dog]; Injury that is caused
intentionally/willfully [intentionally set fire]
2. IL: L owes a duty of reasonable care in maintaining the premises according to fire
safety codes and other generally applicable safety standards to firefighters on the
premises to engage in firefighting activities.
(3) Invitees: L must conduct a reasonable inspection of the property to detect hidden dangers and if
one is found (a) fix, repair, remove, or otherwise make safe the hazardous condition or (b) warn
invitee of the condition if it cannot be repaired.
i. Business Invitee: enter land at express/implied invitation of owner for the purpose of
engaging in business or otherwise benefitting owner.
ii. Public invitee: enter land or property held open to the public. E.g. guest of hotel guest
iii. Rescue: L’s owe duties to rescue invitees who become endangered while on the property.
(4) Scope: L’s duty extends only to those areas w/I the scope of license/invitation.

E. RECREATIONAL LAND: L who permits the general public to use land for recreational purposes
without compensation is not liable for injuries suffered unless L willfully and maliciously failed to guard
against or warn of a dangerous condition or activity.

F. LANDLORD TENANT DUTIES: T has a general duty to maintain premises. LL is generally not
liable for injuries to T or his guests unless:
(1) CL: LL is not liable for failing to inspect, warn, or repair dangerous conditions that existed
before or arose after T took possession.
(2) Contract: LL K’s to repair he is liable for unreasonably dangerous conditions
(3) Volunteer: LL volunteers to repair and does so without reasonable care [negligently]
(4) Hidden conditions: LL must repair or warn of unreasonable dangers LL knows or should know
of which T is unaware/unlikely to discover upon reasonable inspection
(5) Common areas: use reasonable care in maintaining common areas in a safe manner
(6) Public: If LL knows or should know property will be held open to the public he must inspect and
repair hazardous conditions before T gets possession.

BREACH

A. BREACH: Breach occurs when D’s conduct falls short of the standard of care owed under the
circumstances. Whether a breach has occurred is a question for the trier of fact.
B. JURY DETERMINATION HAND FORMULA: P(L)>B=Negligence To determine whether a D’s
conduct was unreasonable, the burden of avoiding the harm is balanced against the likelihood and
magnitude of the harm.
(1) P = probability of occurrence
(2) L=liability for specified amount of damage
(3) B= burden of preventing accident, including potential benefit of dangerous conduct to society

C. TO DEMONSTRATE BREACH P CAN ARGUE: Use expert witnesses.


(1) RPP standard: P failed to use reasonable care under the circumstances
(2) Negligence Per se: D violated the relevant statute
i. D’s evidence that he complied w statute is only relevant as to reasonableness of his
behavior; not conclusive.
ii. Jury determines whether statute was violated; judge determines whether 3 elements have
been met.
(3) Specialized standard of care: experts.
(4) Custom or usage in industry: Evidence of well-established industry practices [custom] and
common uses of products [usage] can be offered to establish the standard of care to which a
person will be held.
i. Conforming acts: Proof that D followed custom/usage is not necessarily determinative
of his lack of negligence. Can be offered as evidence that he acted reasonably.
1. except medical and some other professionals – can conclusively establish
standard; won’t be liable but standard may change
ii. Unreasonable custom: If industry custom is determined to be unreasonable D’s
conformity will not protect him from liability
(5) Res Ipsa Loquitor: Where the very occurrence of the accident causing P’s injury suggests
negligent conduct. Arises where P does not have direct evidence of D’s unreasonable conduct
because circumstances causing injury are unknown to P.
i. Requirements: (1) The harm caused would not normally occur absent negligence (2) The
type of harm caused normally results from negligence by someone in D’s position
[usually injury-causing instrument was in D’s exclusive control] (3) P did not negligently
or voluntarily contribute to the harm.
ii. Result: If P shows res ipsa, P has made a PFC and D cannot win on a directed verdict.
Res ipsa gives rise to an inference of breach. Jury may, but is not required to find that a
breach occurred.
iii. Multiple D’s in control: In a few cases, courts have varied the doctrine and required
each D to prove he was not the one who was negligent. All who fail to prove lack of
negligence are J&S liable.

CAUSATION

A. ACTUAL CAUSE: D’s breach of duty was the actual cause of P’s harm.
(1) Single cause – But for test: But for D’s conduct/activity the P wouldn’t have suffered injury.
(2) Joint causes – Substantial factor test: Where multiple causes bring about P’s injury and any of
them alone would have caused the injury D’s breach will be the actual cause if it was a
substantial factor in bringing about P’s injury.
(3) Alternative causes – Burden shifting test: Where multiple D’s act, often simultaneously, but
only one is the cause of injury and it is unclear which D caused the injury. P must offer evidence
that each D breach the duty of care, which will shift the burden to the D’s to prove that his
negligent act was not the cause of the injury. If neither can disprove liability, all D’s will be J&S
liable.

B. PROXIMATE CAUSE: A defendant is generally liable for all harmful results that are the normal
incidents of and within the increased risk caused by his acts. i.e. P must establish that (1) the harm was a
reasonably foreseeable result of D’s conduct and (2) the D’s conduct was not superseded by an
intervening force.
(1) Direct cause: If P’s injury is the direct consequence of D’s negligent conduct, D is liable unless
the outcome is unusually bizarre or unpredictable.
(2) Intervening force: An act by a 3P or a force of nature that occurs after the D’s act and joins with
the D’s negligent act to cause the harm.
i. Test: D will remain liable for all of the harm that results from his conduct, despite the
intervening force if
1. The occurrence of the intervening force was foreseeable or
2. the type of harm P suffered was a foreseeable result of D’s conduct
a. even if intervening force wasn’t foreseeable and the harm wouldn’t have
occurred if not for the combination of the force with D’s conduct
3. *** D usually liable if injury could have possibly resulted even without the
intervening force
ii. Common dependent intervening forces Always foreseeable:
1. Subsequent medical malpractice
2. Negligence of rescuers
3. Efforts to protect the person or property of one’s self or another
4. Injuries caused by another reacting to D’s actions
5. Subsequent diseases caused by a weakened condition
6. Subsequent accident substantially caused by the original injury
7. ***Usually not where intervening cause is an intentional tortfeasor
iii. Independent intervening forces: Not a natural response or reaction to D’s negligence;
may still be foreseeable if D’s negligence increased the risk of harm from these forces.
1. Negligent acts of 3Ps
2. Crimes and intentional torts of 3Ps
3. Acts of god
iv. Foreseeable result caused by unforeseeable intervening force – D liable: Doesn’t
apply where unforeseeable intervening force was a crime or intentional tort of a 3P.
v. Unforeseeable result by foreseeable intervening force – D not liable:
vi. Unforeseeable result by unforeseeable intervening force – D not liable: Superseding
causes.
(3) Severity of harm – Eggshell P rule: D takes P as he finds him and is liable to the full extent of
his injuries, regardless of whether they are foreseeable.

NEGLIGENCE DAMAGES

A. ACTUAL HARM: required in all negligence actions. No tort without damage even if D breached a
duty. Damages will not be presumed –nominal damages are not available.

B. PERSONAL INJURY: P is compensated for all his damages – past, present and prospective –
special/economic damages such as medical expenses, lost wages, cost of repair and Non-
economic/general damages such as pain & suffering, embarrassment, disfigurement

C. PROPERTY DAMAGE: Specific damages for the reasonable cost of repair or if nearly destroyed, its
FMV at the time of the accident. Usually cannot recover general damages for emotional distress etc. for
harm to property.

D. PUNITIVE DAMAGES: Generally, not available in negligence. If D’s conduct was wanton and
willful, reckless or malicious, P can recover punitive damages.

E. NON-RECOVERABLE: Interest from the date of damage from the date of personal injury action and
attorney’s fees.

F. DUTY TO MITIGATE: P has a duty to take reasonable steps to mitigate damage – e.g. seek medical
help instead of stay at home while injury gets significantly worse.

G. COLLATERAL SOURCE RULE: Damages are not reduced bc P has another source of benefits e.g.
insurance.

DEFENSES TO NEGLIGENCE

A. CONTRIBUTORY NEGLIGENCE: [Complete bar to P’s recovery] P’s conduct (1) falls below the
standard of care (2) and contributes to P’s own injuries. Failure of P to exercise reasonable care is a
complete bar to recovery. Last clear chance: The party that had the last clear chance to avoid the injury
is liable. If D had the last clear chance, P will recover completely for injuries.

B. COMPARATIVE NEGLIGENCE: [Reduces P’s recovery] D establishes that P’s injuries are at least
partially the result of P’s own negligence. P will be awarded damages inversely proportional to the
Plaintiff’s level of responsibility for the harm caused.
(1) Partial/Modified: P can only recover damages if he was less than 50% at fault.
i. IL Approach is partial.
1. Violation of seatbelt statute: P’s failure to wear a seatbelt, in violation of statute
will no (1) be considered evidence of negligence (2) limit the liability of an
insurer (3) diminish any recovery of damages arising out of the ownership,
maintenance, or operation of a car.
2. Last clear chance: no longer followed.
3. Assumption of risk: treated as contributory fault.
4. D’s wanton & willful misconduct is intentional: damages are not reduced by
P’s contributory negligence.
5. D’s wanton & willful misconduct is reckless: damages are reduced.
(2) Pure [presumed on MBE]: P can recover damages even if he was more than 50% at fault.

C. ASSUMPTION OF THE RISK: [Complete bar to P’s recovery] P will be found to have assumed the
risk if P (1) knew of a particular risk and (2) voluntarily acted to assume the risk.
(1) Express: P accepts the risk by explicit agreement
(2) Implied: P voluntarily engages in an activity in which a reasonable person would be aware of the
associated risks of harm. Will not be applied where P had no choice but to assume the risk, or in
situations involving fraud, force, or an emergency. Common carriers and innkeepers cannot
disclaim/limit liability. Members of a class protected by statute will not be deemed to assume
risk.
i. Recovery: When implied, courts often apply principles of comparative negligence to
allow P to get partial recovery.

STRICT LIABILITY

A. PRIMA FACIE CASE: D is held liable for the harmful consequences for his actions without regard to
his intent, negligence, or fault. (1) Nature of D’s conduct/activity [abnormally dangerous, animal
conduct, defective products] imposes an absolute duty to make safe (2) Actual cause (3) Proximate
cause – ignoring intervening causes despite lack of foreseeability (4) damages to P’s person or property.

B. ABNORMALLY DANGEROUS ACTIVITY: A D who engages in abnormally dangerous activities


will be held strictly liable for damages caused by the activity, regardless of the precautions taken. P
must prove: (1) D was involved in an abnormally dangerous activity that gave rise to an absolute duty
to make safe (2) the risks associated with the activity could not be made reasonably safe i.e. cannot be
performed without a serious risk of harm (3) the condition or activity is uncommon the community (4)
the abnormally dangerous activity was the actual and proximate cause of P’s injury to person or
property.
(1) Abnormally dangerous activities: (1) level of risk inherent in activity (2) magnitude of the
harmed risk (3) the impossibility of removing all risk (4) whether the activity is appropriate to
the location (5) the value to the community of continuing the dangerous activity.
i. Toxic materials v. Poison
ii. Explosives vi. High energy activities
iii. Nuclear materials vii. NOT fire or utilities.
iv. Fireworks

(2) Harm: must result from the kind of danger to be anticipated by the dangerous activity –
including harm caused by fleeing from the perceived danger. SL doesn’t apply where the injury
is caused by something other than the dangerous aspect of the activity.
C. ANIMAL ACTIVITY: An animal owner may be held strictly liable for damage caused by her animals
depending on the type of animal that causes the harm.
(1) Harm: must result from the kind of danger to be anticipated by the type of animal – including
harm caused by fleeing from the perceived danger. SL doesn’t apply where the injury is caused
by something other than the dangerous propensity of the animal.
(2) Livestock: An owner of livestock is strictly liable for reasonably foreseeable harm caused by
trespassing livestock. [not dogs or cats]
i. CL owners of livestock were strictly liable for the damage caused by livestock
trespassing on another’s land, regardless of the care the owner exercised to prevent the
trespass.
(3) Domestic Animals: An owner of a domestic animal will be held strictly liable for injuries caused
by the animal if (1) the owner knew or should have known of the animal’s unusually violent
temperament or dangerous tendencies and (2) that particular trait or propensity was the cause of
the harm. Otherwise, liability for negligence. [First bite = negligence; any other = SL] No
liability for trespassers absent negligence.
i. Normal characteristics: Injuries caused by the normal dangerous characteristics of
domestic animals [e.g. bulls, honeybees, farm animals] does not create strict liability.
ii. Watchdog: Owner may be liable on intentional tort grounds for injuries inflicted by
vicious watch-dogs. The privilege to protect property for intentional torts applies – only if
he would have been able to use a mechanical protection device would he be able to use a
vicious watch-dog.
(4) Wild Animals: An owner of a wild animal in captivity will be held strictly liable for injuries
caused by the wild animals as a result of a harmful or dangerous propensity or characteristic of
such animals, regardless of the level of care exercised or the precautions taken. Only liable to
licensees and invitees; not trespassers [unless D is negligent]
i. A lion or chimpanzee, no matter how trained or loveable, can never be a domestic animal.

D. DEFENSES: Once P has established the PFC, D may argue (1) assumption of the risk [complete
defense] (2) comparative negligence [partial defense].

PRODUCTS LIABILITY

A. DEFECTIVE PRODUCTS: A defective product is one that creates an unreasonably dangerous


condition to users. For liability, the unreasonably dangerous condition/injury must come from the defect
itself.
(1) Manufacturing Defect: Particular product/portion was manufactured differently than intended.
i. Proof: Consumer expectation test: Product is dangerous beyond the expectation of the
ordinary consumer.
(2) Design Defect: [inadequate warning] All products in the line were manufactured the same
according to specifications but creates an unreasonably dangerous condition because of
mechanical features or packaging [i.e. warning] making the whole line defective.
i. Proof: Feasible Alternative Design: A less dangerous modification or alternative was
economically feasible. Analyze based on risk vs utility: Whether risk posed by the
product as designed outweighs the utility of the product as designed. Consider:
1. Usefulness/utility/desirability of the product
2. Avoidability of injury by care in the use of product including role of instructions
& warnings
3. Availability of safer alternative products
4. Dangers of the product identified by the time of trial
5. Likelihood of probable serious injury
6. Obviousness of danger
7. Normal public awareness of danger/risks [especially for established products]
8. Feasibility of eliminating the danger w/o seriously impairing the product’s
function or making it unduly expensive.
ii. Inadequate warning: [Same analysis is design defect] Type of design defect. Products
must have a clear and complete warning of non-obvious risks associated with a product’s
use. Learned intermediary rule: Prescription drugs/med devices – warnings don’t have to
be supplied to patients; Dr’s warning is enough.

B. COMMON CONSIDERATIONS FOR ALL DEFECTS:


(1) Warnings – Non-Obvious Risks: Products must have a clear and complete warning of non-
obvious risks associated with a product’s use.
i. Foreseeable Risks: M has a duty to warn of all dangers that can result from intended
uses and reasonably foreseeable misuses of a product.
ii. Allergies: If the allergic group is a significant number, the product is defective unless
adequate warnings are conveyed.
(2) Unavoidably unsafe products: Manufacturers won’t be held liable if the product is of
significant utility, the danger is apparent, and there is no safer way to make the product. E.g.
knives, guns. If a product cannot be made safe for its ordinary use manufacturer must give (1)
proper instructions for its use and (2) adequate warnings of known dangers.
(3) Scientifically unknowable risks: Totally unpredictable hazards sometimes don’t become known
until they are marketed/sold. D won’t be liable for damages where it was impossible to foresee
the problem and make the product safer or provide warnings.
(4) Government safety standards: Non-compliance with safety standards establishes that a product
is defective in design or warning. Compliance [including labelling requirements] is evidence –
but not conclusive – that it is not defective.

C. INTENTIONAL THEORY: [usually battery] (1) Defect exists (2) defect existed when product left D’s
control (3) D intended to create defect or knew that defect was substantially certain to occur (4)
Damages.
(1) Standing: any injured plaintiff. No privity required.
(2) Damages: Both compensatory and punitive damages to extent allowed under the underlying tort.
(3) Defenses: defenses available in the underlying intentional tort case. Not neg. defenses.

D. NEGLIGENCE THEORY: (1) D owed P a duty of Care (2) Breach – D’s conduct fell below the
standard of care (3) leading to the supplying of a defective product (4) the defect existed when the
product left D’s control (5) Defect was the actual and proximate cause of P’s injury (6) Damages - P or
his property suffered actual physical harm.
(1) Standing: Duty of care owed to any foreseeable P – user, consumer, or bystander.
(2) Scope of Liability: All parties along the product supply chain – from manufacturing to the sale
of the product – may be held liable under the negligence theory.
(3) Duty Owed By: Product supplier – anyone who supplies i.e. manufacturer of product or
component part, assembler, wholesaler, retailer, or even casual seller [used car dealer] NOT
those who repair – they owe general duty of care. Retailer who labels products as its own or
assembles products from manufactured components is liable for manufacturer’s negligence even
if not personally negligent.
(4) Breach: (1) negligent conduct by D leading to (2) the supplying of a defective product by D
i. Negligent Conduct: D’s conduct fell below the standard of care expected of an RPP
under the circumstances considering superior skill/training as D has/purports to have.
1. Manufacturing Defects: Manufacturer’s Liability – P can invoke res ipsa if
error doesn’t usually occur w/o negligence of manufacturer. Dealer’s liability -
Retailers and wholesalers satisfy their duty by a cursory inspection of the products
– this makes it hard to hold them liable on a negligence theory.
2. Design Defects: Those designing product knew or should have known of enough
info to put a reasonable manufacturer on notice about the dangers of
manufacturing the product as designed. Not negligence if the danger became
apparent to RP manufacturer after product reached the public. Dealer’s liability -
Retailers and wholesalers satisfy their duty by a cursory inspection of the products
– this makes it hard to hold them liable on a negligence theory.
ii. Defective product: Use above standards Violation of stat. Res ipsa. Risk/Utility
(5) Causation: Actual and proximate cause. Evidence of recent purchase and ordinary use of the
product will aid in establishing causation.
i. Intermediary: negligent failure to discover defect not superseding cause. D whose
negligence caused defect is liable along w intermediary. Except where intermediary’s
conduct is something more than ordinary foreseeable negligence e.g. retailer discovered
defect but failed to warn P.
(6) Damages: Breach caused actual physical harm to P or her property. Cannot suffer from only
economic loss. IL & Maj: If only economic, can’t recover for products liability.
i. If P only suffered economic loss look to negligent misrepresentation or breach of implied
warranty of merchantability as a basis for recovery.
(7) Defenses: All standard negligence defenses are available – i.e. contributory negligence,
comparative negligence, assumption of risk.

E. REPRESENTATION THEORY:
(1) Standing/Foreseeable P: Any person who buys, uses, or is affected by the use of the product
may bring suit against D.
(2) Express Warranty: (1) D made an affirmation of fact or promise to P (2) the affirmation
became the basis of the bargain (3) the product failed to live up to that affirmation i.e. it was
defective (4) the defect existed when product left D’s control (5) defect was actual and proximate
cause of Ps injury (6) damages.
i. Basis of the bargain: If not the B who is suing, 3P doesn’t have to have known of
affirmation to recover as long as it was part of basis between S-B.
ii. Fault: Doesn’t have to be shown. Only that breach of warranty occurred.
iii. Disclaimer: will be effective only in the unlikely case that it is consistent with the
warranty.
iv. Causation: Same as in negligence.
v. Damages: Personal injury and property damages, AND purely economic losses.
vi. Defenses: Assumption of the risk – UCC states that using product while knowing
breach of warranty – resulting injuries not proximate cause; Contributory negligence –
Unreasonable failure to discover defect doesn’t bar recovery but unreasonable conduct
after discovery bars recovery. Comparative – reduce damages same as in SL. Notice of
breach – B must give S notice w/I a reasonable time after B discovers or should discover
the breach. Cts hold that this is required for personal injury and even where there is no
privity.
(3) Misrepresentation of fact: (1) S made a representation of material fact about a product (2) Fault
(3) S intended to induce B’s reliance (4) B justifiably relied (5) the product failed to conform to
representation i.e. it was defective (6) the defect existed when the product left D’s control (7)
defect was the actual and proximate cause of Ps injury (6) Damages. [liability can be based in
SL, intentional, or negligent]
i. Fault: SL – D engaged in business of selling such products, no need to show fault. P just
needs to show that representation was false. Intentional Misrep – Made knowingly or w
reckless disregard for the facts. Negligent misrep – RPP would have known such
representations to be false when making them.
ii. Material Fact: fact concerning quality, nature, or appropriate use of the product which a
normal buyer may be expected to rely on. Puffing and opinions not enough.
iii. Intend to induce reliance: D intended to induce B’s reliance or class to which B belongs
iv. Justifiable reliance: Representation was a substantial factor in inducing the purchase
even though not the sole inducement. Privity is irrelevant so reliance can be B’s and 3P is
V.
v. Causation: actual – B’s reliance shows actual cause. Proximate – analyzed like SL or
neg.
vi. Damages: Same as SL or Neg. If P shows misrepresentation was intentional, court may
award punitive damages.
vii. Defenses: NO assumption of risk. Contributory negligence – is available if
misrepresentation was negligent. not for intentional. For SL Not a defense where P
merely failed to discover or guard against defect’s existence or P’s misuse was
reasonably foreseeable. BUT some unreasonable conduct such as voluntarily and
unreasonably encountering a known risk i.e. assumption of risk are defenses. IL same
approach – has modified comparative fault doctrine for SL products.

F. IMPLIED WARRANTY THEORY: [Under Art. 2 of UCC for sale/lease of goods] Implied in every
sale of goods (1) Merchantability (2) fitness for a particular purpose.
(1) Merchantability: (1) D is a merchant (2) an implied warranty that the product is without defect
and fit for its ordinary purpose exists (3) the product was defective [failed to live up to
warranty/not of average acceptable quality] (4) the defect existed when the product left D’s
control (5) Actual and proximate cause of Ps injury (6) Damages. Must be a merchant dealing
in the goods of the kind sold.
(2) Fitness for a particular purpose: (1) Seller knows or has reason to know of B’s particular
purpose (2) B relies on seller’s skill or judgment to select suitable goods (3) the product was
defective [failed to live up to the warranty] (4) the defect existed when the product left D’s
control (5) Actual and proximate cause of Ps injury (6) Damages. Can be any seller; doesn’t
have to be a merchant.
(3) Standing: UCC requires horizontal privity. 3 alternatives for states to use – (A) [majority]
extends warranty to B, family, household, and guests who suffer personal injury. (B) extends to
any natural person who suffers personal injury. (C) Extends to any person who suffers injury.
(4) Proof of Fault: If product doesn’t live up to implied warranty, warranty is breached & D is
liable. P doesn’t need to prove fault of D.
(5) Causation: Same as in negligence.
(6) Damages: Personal injury and property damages, AND purely economic losses.
(7) Defenses: Assumption of the risk – UCC states that using product while knowing breach of
warranty – resulting injuries not proximate cause; Contributory negligence – Unreasonable
failure to discover defect doesn’t bar recovery but unreasonable conduct after discovery bars
recovery. Comparative – reduce damages same as in SL. Notice of breach – B must give S
notice w/I a reasonable time after B discovers or should discover the breach. Cts hold that this is
required for personal injury and even where there is no privity.
(8) Disclaimers: For breach of implied warranty – must be very specific and are narrowly
construed. For merchantability, must mention merchantability. K limitations on personal
injury damages from breach of warranty are prima facie unconscionable.

G. STRICT LIABILITY THEORY: (1) D is a commercial supplier of the product (2) the product was not
substantially altered (3) The product D produced/sold was defective (4) the defect existed when the
product left D’s control (5) defect was the actual and proximate cause of P’s injury (5) Damages – P
suffered damages to person or property
(1) Standing: Buyers, members of B’s family, guests, friends, employees and foreseeable
bystanders.
(2) Liability: Commercial Suppliers in the chain of distribution– NOT casual seller [homemaker
selling jam] or Services [transfusion of defective blood] Manufacturer [or of component part],
retailer [restaurant is retailer], assembler, wholesaler & [maj] mass producers of new homes,
commercial lessors of products [car rental], seller of used products that are reconditioned/rebuilt.
(3) Not Substantially altered: For commercial seller to be liable, product must be expected to and
actually reach consumer w/o substantial change in the condition in which it was supplied.
(4) Production/Sale of Defective Product: P only needs to show it was defective. No negligence.
(5) Causation:
i. Actual Cause: P must trace harm to a defect that existed when the product left D’s
control. If difficult to prove, P can rely on modified res ipsa – inference that this type of
product failure ordinarily would occur only as a result of a product defect. Lack of
warning: P is entitled to presumption that an adequate warning would have been read and
heeded.
ii. Proximate cause: Same as under SL/Negligence i.e. foreseeability.
1. Intermediary: negligent failure to discover defect not superseding cause; doesn’t
cut off SL for supplier. D whose negligence/SL caused defect is liable along w
intermediary.
(6) Damages: actual harm to person/prop required. IL & Maj: If only economic, can’t recover for
products liability.
(7) Defenses:
i. Contributory/Comparative Negligence: Not a defense where P merely failed to
discover or guard against defect’s existence or P’s misuse was reasonably foreseeable.
BUT some unreasonable conduct such as voluntarily and unreasonably encountering a
known risk i.e. assumption of risk are defenses. IL same approach – has modified
comparative fault doctrine for SL products.
ii. Disclaimers: Irrelevant.

NUISANCE

A. NUISANCE GENERALLY: Falls into the usual categories of torts – it is a harm caused by a tort, not a
tort in and of itself i.e. (1) Intentional (2) negligent (3) SL. Usually, intentional interferences bc D is
made aware that his conduct is interfering with P’s land.
(1) Strict Liability Nuisance per se: if you have something on your land that is unnatural and ultra-
hazardous/animal and it escapes SL if it escapes. [cattle/wild animals; escaping sewage; chlorine
from factory]

B. PRIVATE NUISANCE: (1) Theory of liability [Intentional; negligent; SL] (2) causation (3)
Substantial and (4) unreasonable interference (5) with another’s use or enjoyment of property
(1) Substantial – causes actual damage to person/property of P – offensive, inconvenient, or
annoying to RPP in the community NOT merely due to P’s hyper-sensitivity or specialized use
of property
(2) Unreasonable – the severity of the injury must outweigh the utility of D’s conduct. Everyone is
entitled to use land in a reasonable way considering the neighborhood, land values, and existence
of alternative course of conduct for D
i. Unreasonableness doesn’t have to be proved if based on SL theory i.e. abnormally
dangerous activity.
(3) Standing: P must be in possession or has immediate right of possession or ownership interest in
the affected land.
C. PUBLIC NUISANCE: (1) Theory of liability [Intentional; negligent; SL] (2) Causation (3) substantial
and (4) unreasonable interference (5) with the health, safety, or property rights of the community at
large.
(1) Substantial/Unreasonable – ct looks to interference w/ public health, safety, peace, comfort,
convenience; activity is continuous and substantially and detrimentally affects public right; or
resulted in a long-lasting effect and substantially and detrimentally affects a public right.
(2) Standing: Public official/agency; Private person/business that suffered special damage i.e.
additional element must be proved that P suffered different or more severe than that suffered by
the public at large. P doesn’t need to have possessory or ownership interest to bring suit.
i. e.g. Pedestrians inconvenienced by having to walk around D’s sidewalk obstruction. P
tripped and fell. This is unique damage permitting him to recover

D. REMEDIES:
(1) Damages: Usual remedy for private nuisance or public nuisance where private P has suffered
unique harm.
(2) Injunctive Relief: Legal remedy is unavailable or inadequate e.g. nuisance is continuing wrong,
is of the kind that will cause irreparable injury etc. Ct also considers relative hardships that will
result to parties from grant or denial of injunction. Wont balance hardships where D’s conduct
was willful.
(3) Abatement by self-help: Private nuisance: P can enter D’s land and personally abate the
nuisance after notice to D and D’s refusal to act. Can only use force necessary/reasonable to
accomplish the abatement. P liable for additional harm done. Public: If private P suffers unique
damage, he gets a similar privilege. Without unique damage, can only be abated by public
authority.

E. DEFENSES:
(1) Legislative Authority: Conduct consistent w zoning laws or legislative license permits is
relevant but not conclusive ev that nuisance is reasonable.
(2) Conduct of others: No one actor liable for all damage caused by concurrence of his acts and that
of others. E.g. 3 steel mills each polluting; each liable for amount of pollution it emits.
(3) Contributory Negligence: Available if P asserts nuisance under negligence theory and acted
negligently in creating the nuisance.
(4) Coming to the Nuisance: [form of assumption of risk] P buys or takes possession of property w
conditions or activity that would create the nuisance already present. Traditionally, it was a
complete bar to recovery. Modernly, proof that P assumed the risk by coming to the nuisance is
one factor in considering whether D’s actions were substantial and unreasonable. BUT it is a
complete bar if D proves that P bought the property for the sole purpose of bringing a nuisance
action.

LIABILITY ISSUES & REMEDIES

VICARIOUS LIABILITY

A. VICARIOUS LIABILITY: Allows liability to be assigned to a party who didn’t cause injury but is in a
special relationship w/ D such that it is deemed just to hold the 3P vicariously liable.

B. RESPONDEAT SUPERIOR: Principals [master/employers] are vicariously liable for torts committed
by their agents [servant/employees] within the scope of their employment.
(1) Scope of employment: act is necessary to carry out the required job functions or is reasonably
expected that employee would perform the act.
(2) Frolic: activities that are for employees own purpose that are large deviations in time and/or
geographic area – outside scope.
(3) Detour: Activities that are for employees own purpose that are minor deviations in time and
geographic area – still within scope.
(4) Intentional Torts: Usually not within the scope of employment but exceptions exist
i. Force is authorized by the employment e.g. bouncer
ii. Employment entails friction e.g. bill collector; bail bond; repo man
iii. Employee is furthering the business of employer e.g. removing customers from
premises bc they are rowdy
(5) Employer Negligence: Still can be liable for their own negligence in negligently selecting or
supervising their employees. Not vicarious liability.

C. INDEPENDENT CONTRACTORS: Generally, not vicariously liable for IC torts. Except for (1) acts
that are inherently dangerous e.g. excavating next to public sidewalk; blasting and (2) duties that are
non-delegable bc of PP considerations e.g. duty to keep premises safe for customers and (3) liability for
own [not VL] negligence in selecting/supervising IC

D. PARTNERS & JOINT VENTURES: Each partner is VL for any other partner’s torts committed w/I
the scope and course of affairs of the partnership/JV.
(1) Joint venture: like partnership but for more limited time and purpose. Exists where 2+ people
enter into an activity with (1) a common purpose i.e. shared business purpose – sharing of
expenses is highly persuasive] (2) mutual right of control i.e. sufficient that there is an
understanding between them that each has a right to have their desires respected on the same
bases as the others; doesn’t have to be mutual ability to give directions.

E. CAR OWNER LIABILITY FOR DRIVER: Generally, vehicle owner isn’t VL for torts of 3P driving
his car. IL does not have any exceptions – no VL. except many states by statute: (1) family purpose
doctrine – Owner VL for tort of immediate family/household member driving the car for the family’s
benefit w/ express/implied consent (2) permissive use – [stats] VL to owner for torts of anyone driving
their car w/ owner’s express/implied consent (3) Negligent entrustment – O is primarily liable for
allowing 3P O knows or should know is too negligent to drive a car. Some states even make O liable
[primary] if she was present in the car [reasoning: could have prevented negligent driving, so she was
negligent]

F. BAILOR FOR BAILEE: No VL; but can be negligent for entrusting the bailed object w bailee.

G. PARENT FOR CHILD: Generally, at CL, parent not VL for child’s torts. Most states by stat make
parent VL for willful and intentional torts of minor children up to a certain $ amount [e.g. $5K]
(1) Agent of parent: Cts can impose VL if child commits tort while acting as parent’s agent. E.g.
child in accident while running parent’s errand; driving sister to school.
(2) Own negligence: (1) Had reason to know of child’s propensity to injure/neg – negligent in not
exercising due care in exercising control to mitigate such conduct or (2) facilitated the tort –
provide dangerous instrumentality w/o instruction; aware of and sanctions tortious conduct.
(3) IL: Children between 11-19 allows P harmed by child’s willful or malicious acts to recover up to
$20K in actual damages from parents for each occurrence + costs & attorney’s fees. If conduct is
continual goes up to $30K/occurrence.

H. TAVERNKEEPERS/DRAM SHOP LAWS: Traditionally, no VL for injuries caused by intoxicated


customers. Modernly, by stat, bartenders and owners will be VL for injuries caused by intoxicated
customers if bartender/owner was negligent in serving customer. [i.e. must be inebriated or underage
when served for liability] Also based on case law for negligence – i.e. foreseeable risk of serving minor
or obviously intoxicated person – not VL.
(1) IL Dramshop: Liability is capped every year – adjusted for inflation – now less than $100K. NO
social host liability in IL.
i. No fault Liability for licensed sellers for 3P injuries by intoxicated persons. No defenses
based on negligence since SL.
ii. Liability to any adult who pays for hotel/facility knowing it’ll be used for underage
drinking if intoxicated minor causes 3P injury.
(2) IL Adult/non-residential prop. Alcohol/drugs to minor: (1) Adult who willfully supplies and
(2) non-residential property owner who willfully permits consumption on property (3) of
alcohol/illegal drugs to a minor (4) that causes/contributes to impairment of minor (5) liable for
death, personal injuries, property damage of the minor or 3P as a result of impairment.

TORT IMMUNITIES

A. INTRA-FAMILY IMMUNITY: (1) for personal injuries: Husband-Wife Immunity – Most states
have abolished. Either spouse can sue the other in tort. IL abolished. Parent-Child immunity –
Majority have abolished but still grant parents broad discretion to parent’s exercise of parental
authority/supervision IL position but allows child to sue for auto injury bc not conduct inherent in
parent-child relationship. Min. retain it but don’t apply it in cases of intentional torts and in many, auto
accident cases at least to extent of insurance coverage. (2) For property injuries: No immunity for
property injuries.

B. GOVERNMENTAL IMMUNITY: Sovereign immunity – traditionally govt cant be sued in tort unless
they consented to suit. Now, limited by statute & cases.
(1) Feds: Federal Tort Claims Act – US has waived immunity for torts except (1) enumerated torts
assault, battery, FI, FA, malicious prosecution, abuse of process, libel/slander,
misrepresentation/deceit, interference w/ K rights (2) Discretionary vs ministerial acts – Not
waived for discretionary i.e. acts on the planning/decision-making level; waived for ministerial
i.e. acts at the operational level [e.g. repairing traffic signal] (3) government contractors – govt
contractor can assert immunity defense in products liability if he conformed to reasonable,
precise, specifications approved by govt and warned govt of any known dangers.
(2) State governments: Most states waived like the feds. Immunity still attaches for discretionary
acts and legislative/judicial decision-making.
i. IL: damages against state capped at $100K except in car accidents driven by state in state
vehicle.
(3) Municipalities: ½ states abolished immunity by statute or judicial decision to same extent that
the state waived its own immunity. IL has stats w extensive list of immunities – judicial
exceptions like governmental/proprietary don’t apply.
i. Public duty rule: where abolished. Courts apply this to limit scope of govt liability.
1. A duty owed to the public at large is not owed to any particular citizen
2. No liability exists for failure to provide police protection in the absence of a
special relationship between municipality and citizen that gives rise to a special
duty.
a. Special relationship shown by – (1) assumption of duty to act on behalf of
injured party through promises/actions (2) agents knowledge that inaction
could lead to harm (3) direct contact betw agents and injured party (4) ptys
justifiable reliance on municipality’s affirmative undertaking.
ii. Immunity for govt functions: functions historically construed as onle capable of
adequate performance by government e.g. police, fire, court. IL doesn’t apply.
iii. No immunity for proprietary functions: municipality performing function that might as
well have been done by corporation e.g. utilities, parking lots. Inference strengthened
when govt collects $ by rendering the service. IL doesn’t apply.
(4) Public officials: Public officers are immune from tort liability when carrying out official duties
when they involve discretionary acts w/o malice or improper purpose. Not immune from
ministerial acts.

C. CHARITABLE IMMUNITY: Most states abolished. Even where it exists so many exceptions.

D. IL EMPLOYER WC IMMUNITY: Employer entitled to tort immunity for injuries brought by


employee in course of employment. Employee must use statutory WC claim & employee’s contributory
negligence has no impact on recovery under the statute.

MULTIPLE D ISSUES AND REMEDIES

A. MULTIPLE DEFENDANT ISSUES:


(1) Joint & Several Liability: Acts of 2 or more D’s combine to produce a single indivisible injury.
Each D is J&S liable for the entire harm if his actions were a factor in bringing about injury. If
one D is insolvent, that D’s share will be allocated among remaining D’s even where
comparative fault allowed for apportioning damages.
i. Statutory limitation: many states. Limited J&S in cases based on fault. Liability based
on proportion of fault (1) for tortfeasors judged to be less at fault than P (2) all tortfeasors
re non-economic damages [e.g. pain/suffering, lost wages] IL.
ii. IL: J&S remains for medical expenses. Non-economic expenses – D’s fault is less than
25% of total excluding fault attributable to P’s employer is only liable for fault
attributable to that D. Medmal based on negligence – all liable D’s are J&S for all
damages.
(2) Satisfaction & Release: Satisfaction – If P fully recovers from one D, she cannot recover more
from a jointly liable D. Release – P surrenders C/A against one D. Most states don’t discharge
other D’s liability unless expressly done in release agreement. The claim against the other D is
just reduced by the amount stipulated in the agreement/ or amnt of consideration [whichever
greater] with the released D.
(3) Contribution: D who pays more than share of damages under J&S liability can assert claim
against jointly liable parties for the excess paid. Not applicable to intentional tort liability.
i. Comparative: most states use comparative contribution i.e. in relation to the proportion
of relative fault. IL.
ii. Equal shares: minority- each pays equal share.
(4) Indemnity: Shifting of the entire loss between/amongst D’s. Available by K clauses, in VL
situations – seek indemnification from employee/IC non-delegable duty etc., or under strict
products liability – right to indemnity against all previous suppliers in distribution chain
[manufacturer ultimately liable if product defective when left his control]

B. SURVIVAL TORT ACTION: Traditionally, CL, when P or D died, his tort action abated. Modernly,
by statute, majority of states allow V’s c/a to survive death to permit recovery for damages from the
time of injury to the time of death. In majority of states, it applies to act against property and torts of
personal injury. Exceptions for torts that expire on V’s death i.e. those that invade an intangible personal
interest [defamation, malicious prosecution]

C. WRONGFUL DEATH TORT ACTION: Every state has some form of act.
(1) Standing: Some – personal representative; Others – surviving spouse/next of kin.
(2) Recovery: For the pecuniary injury resulting to the spouse/next of kin. Recovery for loss of
support, loss of consortium/companionship. Doesn’t allow for decedent’s pain and suffering
[those are under survival actions]. If defenses against the deceased exist, they apply.
i. Decedent’s creditors don’t have a claim on amount awarded.
D. LOSS OF CONSORTIUM: Most jxs let spouse/parent recover for intentional, negligent, SL. P must
show that, due to the injury caused to her family member the P has suffered (1) a complete loss of
companionship (2) for a definite period of time.
(1) Companionship: (1) Spouse – P recovers for loss of social and sexual companionship; (2)
Parent – loss of companionship; most states only allow to recover when V was minor child (3)
Child – Most states don’t allow child to recover for loss of parent’s companionship.
(2) Derivative action: Recovery depends on success of family member’s action. Any defense
against injured family member can also be raised in derivative action. Defense against the
derivative family member can also be raised.

E. COMPENSATORY DAMAGES: Awarded to repay P for injuries suffered due to D’s tortious
conduct. For economic, physical, and emotional losses.
(1) Personal injury: (1) medical expenses (2) lost income (3) pain & suffering (4) other economic
losses attributable to the injury e.g. future losses.
(2) Destruction of property: FMV at the time of the tortious act.

F. NOMINAL DAMAGES: Awarded to P usually as a symbolic act – usually $1. Awarded when P has
established PFC but no actual harm was suffered.

G. PUNITIVE DAMAGES: Awarded to punish D for particularly egregious conduct and to act as a
deterrent to the commission of similar acts in the future. They will generally not be more than 10X the
amount of compensatory damages awarded – due process prohibits the award of grossly excessive
damages against tortfeasors.

H. COLLATERAL SOURCE: Prohibits the parties from informing jury that another source of payment
exists. The amount of damages owed to P cannot be reduced by the receipt of $ from other sources.

I. DUTY TO MITIGATE: P’s have a duty to mitigate the economic or physical harm that results from
D’s tortious conduct whenever possible. If P fails to do so, D won’t be liable for damages that could
have been avoided.

J. INJUNCTIVE RELIEF: When legal remedies are inadequate courts can award injunctive relief.
Courts will balance the interests and hardships of parties in making determination.
(3) Inadequate: id D’s action will cause irreparable harm to P.
(4) TRO or permanent injunction.
(5) Depending on severity of harm, courts can grant injunctive relief in addition to $ damages.