Intentional Torts

Intent
 Elements:
o Acting with purpose to (cause contact, frighten, etc.) OR
o Acting with knowledge of substantial certainty that a particular result will follow
 If less than substantially certain (even if “grave risk” recognized), then not intentional – difference between
intentional/negligent is a “matter of degree”
 Intention is subjective (what that particular person at that time thought in their mind) NOT objective (reasonable person) – determine
based on circumstances, words, actions, etc.
 Doctrine of Transferred Intent: when the intention to harm one individual inadvertently causes a second person to be hurt instead, the
perpetrator is still held responsible.
o Transfer between torts (intent to scare – (assault)  accidentally hit (battery))
 Intend to assault A (tort X), but commit battery on a (tort Y) = liable
o Transfer between people (meant to hit A, wound up hitting B)
 Intend X tort on A, but commit X tort on B = liable
o Transfer between both people AND torts
 Intent to scare (assault) Y, but committed battery against Z (transfer tort & person)
o Generally, only transferred among 5: assault, battery, false imprisonment, trespass to land, trespass to chattels

Types of Intentional Torts

I. Battery (dignitary tort): intentional infliction of harmful or offensive contact. Elements:
 Elements
o Acts intending to cause harmful or offensive contact with someone, or an imminent apprehension of such a contact; AND
o Such contact directly or indirectly results. (Battery REQUIRES contact; assault does not)
 Contact may be with something customarily regarded as part of your person (e.g. hat, cane, book) is sufficient if done in
offensive manner
 Awareness unnecessary (i.e. attack from behind)
 Don’t have to intend to cause harm – just intend harmful/offensive contact. (Vosburg – didn’t intend to cause harm, but
intended to kick)
 “Crowded world” doctrine protects against incidental contact deemed expected to occur. Societal norms determine if contact is protected
or not – time, place, circumstances.
 Battery is intended to protect dignity (so it’s one reason to define something attached to person as person) and if your dignity is harmed,
physical injury isn’t necessary
 Exception: when trying to help someone (mom gives sick daughter Gatorade she didn’t know had antifreeze in it), the rule is changed to be
“intentional infliction of a type of contact that is harmful”

II. Assault
 An actor is subject to liability to another for assault if: (elements)
o He acts intending to cause harmful or offensive contact with the person, OR
o An imminent apprehension of such a contact, AND
o The other is thereby put in such imminent apprehension or anticipation
 Imminent apprehension: Apparent present ability to effectuate contact – P must perceive D as capable of causing
contact (so P must be aware)
 Doesn’t have to be possible to harm, only that P feels in imminent apprehension or believes that harmful or offensive contact will occur
o Doesn’t matter if D lacks actual ability to carry out the threat. Pointing an unloaded gun at a P who doesn’t know it’s unloaded is
still assault.

III. False Imprisonment: intentional, unlawful, restraint of another (person must be unwilling)
 Elements:
o He acts intending to confine a person within fixed boundaries, AND
o His act directly or indirectly results in such a confinement of the other, AND
o The other is conscious of the confinement OR is harmed by it
 Need to know of/be aware of imprisonment
 But, only have to be aware of while it is happening (inability to recall later doesn’t preclude liability)
 Key elements: individual is consciously restrained against their will & restraint is unlawful
 To be a bounded area: 1) where freedom of movement limited in all directions, 2) no reasonable means of escape known to P or that P
reasonably could have discovered
o No requirement P be constrained by physical boundary: May be constrained by threat
o ☆ Ex: Unreasonable to make P climb through rat hole/only way of escape is ‘secret passageway’
o ☆ Ex: No FI when an individual is prevented from entering an area or a space (building) because they are not prevented from
going anywhere else, so they have not been confined.
 Note: An action may lie if D’s force is directed at P’s property.
o ☆Ex: A remained in a building because her purse had been confiscated by B. She could have left the building but that would have
necessitated leaving the purse behind. False imprisonment could result if the purse was wrongfully withheld.
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  Restraint/confined: unable to escape without exposure to person who threatens force, material harm, imminent threats, or danger of
substantial harm to another; or only means of escape is unreasonable
o Would an ordinary person in P’s position feel he could not leave? (R. Person Test)
o Ex: Roommate locks other roomie’s door but roomie sleeping. No c/a. vs Roommate locks roomie’s door & roomie can’t
get out to take pill at, dies c/a
o Sufficient acts to restrain are: physical barriers, physical force/threats of, invalid use of authority & failure to release. Insufficient
acts include moral pressure & future threats.
o Ex: Door wide open but D says, “If you leave I’ll kill your son I kidnapped” (reasonable) v “If you leave, I’ll blow up
Jupiter.”
o No restraint or confinement: verbal commands without force or threats; known and reasonable means of escape  If you make
an unreasonable escape, you cannot recover
o If P’s escape is reasonable and P is injured in the process of escape, then D can be liable for the injuries caused to P.
 For Police to Arrest, they need:
o Probable cause a crime was committed; and
o Reasonable suspicion that the person they’re arresting did it

IV. Intentional Infliction of Emotional Distress

 Elements:
o Conduct must be intentional (or reckless), AND
o Conduct must be extreme, excessive, objectively outrageous; AND
o Casual connection between wrongful conduct and emotional distress, AND
o Emotional distress must be severe (P sought medical aid; not unusually susceptible – unless D knows of this susceptibility)
 Intentional or Reckless:
o D acted with purpose to or knowledge of substantially certainty P will suffer from ED, OR
o D recklessly disregards the high probability that ED will result
 Note: Two ways of showing severe and emotional distress
o Show D intentionally caused severe and emotional distress
(Note: There has to be a causal connection between the conduct and the emotional distress).
o Show P’s severe and emotional distress resulted from D’s extreme and outrageous conduct
 Bystander Cases: bystanders (a 3rd party victim) will recover if (in addition to above elements), victim is:
1) A close relative of the primary victim
 If not a relative, the distress must result in bodily harm
2) Present at the scene of the outrageous conduct;
3) D knew that the close relative was present
o Note: P does not need to establish presence or a family relationship IF she shows that the defendant had a design or purpose to
cause severe distress to plaintiff.
o ☆ Ex: D called Susan and threatened to kill Mike, with whom D knew Susan was living. D then made good his threat. Liability will
attach when Susan suffers severe emotional distress by showing that D’s purpose was to cause her severe distress, even though
she was not a relative of Mike and was not present when he was murdered.

V. Trespass to Land:
 An actor is subject to liability for trespass if he 1) intentionally enters land of another (or causes thing/3 rd person to do so) 2) without
authorization.
o Failure to remove something you had duty to remove = trespass
o Continued presence on land after consent/privilege terminated = trespass
 If one negligently enters another’s land, proof of damages must be shown. If one intentionally enters another’s land, then no proof of
damages is required for COA.
o ☆ Ex: A intentionally bounced a tennis ball against the side of a building owned by B. Although no damage was done to B’s
building, A is liable for trespass. In contrast, if A had accidentally but negligently hit B’s building with the ball, B would not be
liable unless B established damages as part of the negligence prima facie case.
 If trespass established, D is liable for all consequences no matter how unpredictable
 Land: Includes airspace in the immediate reaches of the land
 Entry: Includes leaving something on someone’s land past the point it was authorized to be there or going past the time, area, or purpose
authorized
 Note: If no physical object has entered onto P’s land, e.g., damage resulted from blasting concussions, the courts generally do not treat the
controversy as a trespass case. Rather, they treat it as a nuisance case or as a case of strict liability if ultra-hazardous activities are
involved.

VI. Trespass to Chattels:

 One who uses or otherwise intentionally intermeddles with a chattel of another without consent or privilege to do is liable for trespass if:
o He dispossesses the other of the chattel, OR
o The chattel is impaired as to its condition, quality, or value, OR
o The possessor is deprived of the use of the chattel for a substantial time, OR

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 o Bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected
interest
 Harmless use is insufficient, interference must be substantial and damage must occur
 Measure of damages is the actual diminution in value caused by interference

VII. Conversion
 Elements:
o Intentional exercise of dominion or control of a chattel; and
o So seriously interferes with right of owner to control it that the actor may justly be required to pay the other the full value of the
chattel.
 If the owner is still able to control and maintain the usefulness of the chattel, conversion likely has not occurred. (D not guilty if docs
returned to P in full utility for previously intended purpose).
 Damage measured by:
o Extent and duration of actor’s exercise of dominion/control
o Actor’s intent to assert a right in fact inconsistent with the other’s right of control
o Actor’s good faith
o Extent and duration of resulting interference w/ other’s right of control
o Harm done to the chattel
o Inconvenience and expense caused to the other
 Conversion can be committed by: acquiring possession (stealing), removing, withholding/refusing to return, misdelivering,
damaging/altering, using it, asserting ownership

VIII. What is not a defense against intentional torts?

 Infancy/Age: A minor may be held liable for battery if she acted intentionally, w/ knowledge of substantial certainty that her actions
would cause a harmful or offensive contact to another
 Insanity: where a legally insane person causes intentional damage to the person or property of another, he is liable as a normal person
would be.
 Mistake: not a defense for any tort as long as requisite intent is there
o Even if acting in good faith, a party may never the less be held liable for damages resulting from mistake. [policy: protect property
owners]
 Thin Skull Rule: it’s irrelevant that preexisting injuries make injuries more serious because you take the plaintiff as you find him.
o If your actions caused damage, you’re liable for all damage – even w/o the intent to cause harm.

Privileges: Affirmative Defenses to Intentional Torts

I. Consent: willingness in fact for conduct to occur; conduct must be in scope of consent.
 Express: manifested by words/actions
 Implied: not expressed but inferred from person’s action/inaction, etc.
o Consent is judged objectively (reasonable person in D’s position) (holding arm up for shot)
o Custom: no indication either way, customary for one in P’s position to consent = consent
 Must be informed – fraud, deceit, etc. aren’t foundations for consent (must be material) (ex. doctor withholding critical information about
person with him
 D not privileged if goes beyond scope of P’s consent (ear surgery case – dignity concerns)
 If one has the lack of capacity to consent, any objective manifestation of consent is thus ineffective
o Exception - medical care providers may act in absence of consent when:
 Patient unable (unconscious, incapacitated)
 Emergency – risk of serious harm if delayed
 Lack of consent not indicated
 Reasonable person would consent under the circumstances
 Doctor has no reason to believe patient would refuse treatment under circumstances

II. Self-Defense & Defense of Others

 Anyone can use reasonable force to defend against threatened battery, confinement, or imprisonment if one reasonably believes force is
necessary to defend self.
o Cannot use excessive force (privilege limited to reasonable force necessary)
 Consider differences in age, size, relative strength, etc.
 To justify use of a deadly weapon, D must have a “reasonable apprehension of loss of life or great bodily injury”
 Don’t have to retreat unless force required to defend likely to kill/cause great bodily harm
o Actual necessity isn’t necessary if belief is reasonable
o Apparent harm must be imminent
 Reasonable force in face of imminent, physical harm to third party (can be stranger) = privileged
 Only for protection: privilege ends when battery no longer threatened (can’t retaliate); words do not justify battery (no privilege for
provocation)
 If you injure a third party while legally defending yourself, the privilege is carried over absent negligence toward the third party

III. Defense/Recovery of Property

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  Property owner has privilege to use reasonable force to expel trespasser from his land; to prevent imminent intrusion on his land; or to
prevent another from interfering with/taking his property/chattels
o No privilege against those authorized to enter land
o Must first demand intruder to stop or leave/demand return before using force (unless making such a demand would be useless
or dangerous)
 Rules:
o Deadly force is never justified (value of life/limb great than property).
o Right to use force, but can be liable for any unnecessary force.
o Devices to protect property (ex. barbed wire) only privileged if owner would be privileged to use a similar degree of force himself
o Property: taken wrongfully, can only use force when it was just taken “fresh pursuit”
 Mistakes
o Mistake as to danger: if owner mistakenly, but reasonably, believes force must be used, privileged
o Mistake as to intruder’s privilege: if owner reasonably believes intruder has no right to be there, but his presence is actually
privileged, then owner’s use of force is not privileged
 Merchant Privilege: merchants may detain and search suspected shoplifters if:
o Reasonably believe they took something unlawfully
o Investigation is reasonable (short duration, no coercion).

IV. Necessity – when threatened injury is substantially greater than that from the subsequent tort
 Public Necessity: interests of public good greater than individual rights in conditions of extreme necessity
o If public official, you may use conduct that harms individual rights if it
 Danger to many ppl or threat to public interest (i.e. destroying home to stop fire spread)
 Reasonable & done under good faith
 Under apparent necessity/emergency great enough to justify
 No liability for damages
 Private Necessity: danger only to one person or a few
o Threat or serious/imminent harm
o Necessary, not just apparently necessary
o Entitles you to be there, but still liable for damages done while there
o If you damage property of another while acting out of private necessity to protect something of yours, must still compensate for
damaged property (had to keep boat safe from storm but damaged dock in process) (Vincent v. Lake Erie Transp. Co.)

V. Authority of Law (mainly relates to police officers)

 Arrest with warrant: if mistake – must pass due diligence. Good faith is not a defense.
 Arrest without warrant
o Must have reasonable grounds that felony was committed
o Reasonable belief that you’ve got the right person
o Crime preventing (immediate threat)
o Officer can be mistaken; a citizen cannot (they’ll be liable for false arrest)

VI. Discipline
 Parent-Child Privilege (can discipline children), also extends to babysitters, teachers
 One in a position of power over children may use reasonable restraint/detention to prevent another from inflicting personal
injuries/destruction or out of necessity to maintain discipline or promote welfare.
 Test: degree of force (cannot be excessive) and restraint.
o Factors: age and sex; condition of child; nature of offense/apparent motive

VII. Justification: a “catch all” defense based on reasonableness of action under the circumstances
Negligence
General Considerations:
 Negligence: D failed to exercise reasonable care, which created unreasonable risk of harm (can be an act or willful omission to act if there
is a duty to act), and that failure caused my harm.
o “If there is some probability of harm sufficiently serious that ordinary men would take precautions to avoid it, then failure to do
so is negligent.”
 Duty and proximate cause are limitations on liability
 Only the person to whom the duty was owed may sue/recover, so P must show D owed her a duty
o Broad v. Narrow (Palsgraf)
 Narrow: duty not to cause harm to foreseeable victims (Cardozo)
 Broad: duty to not cause harm at all, limit by proximate cause (Andrews)

FRAMEWORK FOR ANALYSIS: SL -> N -> DUTY -> BREACH -> CAUSATION -> DAMAGES-> DEFENSES
REMEMBER: NO DUTY OWED FOR PURE ECONOMIC LOSS. IF CONSIDERING NEGLIGENCE CLAIM, MAKE SURE THERE IS HARM TO PERSON
OR PROPERTY.

ELEMENTS
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  DUTY (IS LIABLE FOR)
o Is a duty owed?
 Zone of Danger
 Relationships
 Public Policy
 Misfeasance
 No duty for pure economic harm
o What is the duty?
 To not expose plaintiff to an unreasonable risk of harm
 Custom, statute, reasonable person, professional standard, rescuers, owners/occupiers of land (invitee, licensee,
trespasser, landlord)
 BREACH OF DUTY
o Rick of harm, gravity of harm, burden of prevention
o Social utility
o What could D have done differently?
o Custom
o Statute
 CAUSE IN FACT – did the breach (negligent act) cause the harm
o But for test
o Substantial factor test (for concurrent causes - either causes by self)
 PROXIMATE CAUSE
o Foreseeability
o Direct, natural, immediate (not attenuated in time and space)
o Superseding criminal act
 DAMAGE – actual loss or damage has to be shown
o Harm caused to person/property
o Emotional harm if physical manifestation
o Bystander test for emotional harm suffered by witnessing: in zone of danger, related by blood/marriage, emotional distress is
extreme
o Nothing for pure economic loss

Duty
Ways to Establish a Duty (is a duty owed)
 Zone of Danger (foreseeability)
o Defendant who engages in risk-creating conduct has a duty to avoid causing foreseeable injuries to foreseeable plaintiffs.
Foreseeable Ps = everyone within a reasonable apprehension of risk.
 A duty is owed if you can foresee that your actions impose a risk of harm to someone else.
 Person hurt was in the foreseeable range of persons that could be hurt. (not in zone = no duty)
 Would a reasonable person in D’s position perceive that P could be harmed?
o Particularized Foreseeability: special reason to know of risk/special class who would be harmed by risk
 Doctor owed duty to foreseeable victim of mental patient (Tarasoff)
o Constructive notice: risk has been there long enough that if you didn’t know about it, you should have (not needed if D
creates risk)

 Relationships: special relationships between parties may impose a duty on one party.
Consider whether one party has significant more control/power to eliminate or lessen the risk (because of control over
area/device) than the other party, and other party is giving up power to protect themselves? (RELATIVE POSITION OF THE
PARTIES)
o Common carriers to passengers – duty always owed to provide highest standard of care
o Innkeepers to guests
o Public utilities
o Business/possessor of land that holds premises open to public and those who lawfully enter
o Employer to employees who are a) in imminent danger OR b) injured and helpless
o Third parties: if someone is in a unique position to prevent the harm or warn the potential victim AND victim is
foreseeable, duty to warn
 Consider foreseeability of harm if failure to warn & certainty harm will occur
 However, generally no duty to third parties outside contractual relationship

 Public Policy
o Does society want to create this duty for this activity/group?
o Statutes may be evidence of societal norms
o Public outrage

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 o Harm is high/severe

 Misfeasance
o If D does not have a duty, but assumes a duty by voluntarily acting, he now has a duty to proceed non-negligently because
P is now relying on D’s promise/assurance

Standard of Care [What is the duty?]

 Reasonable Person Standard (default standard of care): generally, D has a duty to behave towards others with the degree of care a
reasonable person would exercise under the circumstances. Burden on P to prove unreasonable conduct.
o If B < PL (probability of risk, gravity of harm outweighs burden to lessen/avoid), reasonable person would’ve taken
precautions
 D argument: reasonable person wouldn’t have foreseen this, so he wouldn’t have taken actions to avoid it
(framing!)
 D argument: difficult to calculate the foreseeability of the risk or gravity of the harm when other factors
contributed to the accident.
o Risk does not have to be probable, just sufficient that a reasonable person would have taken action to prevent it
o Knowledge that a reasonable person would possess: ordinary experiences, facts generally known in an area, duty to
investigation, distractions (reasonable person would avoid)
o Standard is narrowed for children, disabilities
 If blind, what would a reasonable blind man do?
 If child, how would a child of same age, intelligence, and experience act?
 However, children engaged in adult activities (potentially dangerous activity normally only pursued by
adults) judged by adult standard
o Mental conditions not considered – reasonable person test with no accommodations – UNLESS incident similar to physical
attack with no forewarning/prior knowledge
o If intoxicated, held to standard of “reasonable sober person”
o Emergency Doctrine: circumstances have bearing on negligence, what would a reasonable person do in an emergency
(sudden, unforeseen, unexpected)?
 Custom: not a duty in itself, but evidence of a reasonable common practice can show that a reasonable person would have follow
the custom. Was there a custom? Did D comply?
o Custom or accepted practice + proof that such practice was ignored + departure from it was proximate cause = liability
o P can argue deviation from custom (D – it was reasonable to do so or wasn’t feasible)
o If D says they complied, P can argue compliance was unreasonable because the entire industry/custom is unreasonable
 Professional Standard of Care: professional must exercise the requisite degree of learning, skills, and ability of that calling with
reasonable and ordinary care.
o Reasonable person standard within particular profession is objective and does not vary based on individual’s personal
training and experience within profession (he flew 100000 hours v. 1000 = qualified to be a pilot, reasonable pilot)
o Not expected to know everything, just what ordinary person in that profession would know
o Must provide expert testimony as to what the professional standard is in that particular profession/situation
UNLESS conduct is so obviously negligent that a layperson would know
o Elements to keep in mind: does this person possess requisite knowledge/skill? Is there a recognized, established
standard? Is there causation (bad results aren’t proof)? Expert witness to say negligence?
o Attorneys – exercise best judgment
 Expert testimony to establish breach of the relevant standard of care, except in cases where the attorney’s alleged
carelessness is straightforward enough for a lay person to assess.  
 Causation: P must prove that they would’ve won but for attorney’s negligence
 Generally, no duty to third party, unless beneficiary (wills, etc.)
 HOWEVER – consider whether there may be an IIED claim if they actively concealed information, GM case; did the
client end up having to pay more for their conduct
o Medical Professionals
 Some jurisdictions have a locality rule that makes malpractice depend on the standard of care that’s ordinarily
prudent/reasonable for that particular area
 Medical Malpractice: D failed to conform to profession’s customary practice and that failure caused P’s injury
 Not enough to have expert witness say he would’ve done differently
 Must prove no reasonable doctor would have done it
o Difference between general practitioners and specialists.
 Just because treatment is “alternative” method, doesn’t make it unacceptable
 Doctor must have done something that recognized standard of good medical practice actually
forbids or failed to do something standard requires
 Informed consent:
 Duty to Inform:

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  What would a reasonable patient want to know? (Minority standard: what would a reasonable
doctor feels is important to disclose)
 Generally, should disclose: nature/purpose of treatment, probability of success, alternatives,
risks/consequences of treatment, risks if not treated
 Exception: if doctor has reasonable belief that informing patient would lead to them not getting
treatment or it is an emergency, no duty
 Causation:
 P must provide he or a reasonable person would have done differently if properly informed
 To sue, P must prove that 1) doctor failed to inform of material risk, 2) that if she had been informed, she
wouldn’t have consented; 3) because she wasn’t informed, she was injured.

Relationships that Establish a Duty

 Contractual duty
o Nonfeasance (breaking promise) is generally a K action
 Exception: public utilities/common carriers failing to do duty
o Can’t make N claim against a D with no duty to you (you’re not in contract with)
o Duty owed to non-original purchaser of product if:
 Dangerous (negligently made, reasonably certain to endanger life of another)
 Knowledge of danger is probable, not just possible
 Knowledge that it’ll probably be used by people other than purchaser
o No duty owed to non-clients in professional relationships
 Lawyers have strict privity limitation (exception: beneficiaries to wills)

 Owners/Occupiers of Land
o Outside Premises
 Natural Hazards: no duty to remove/guard against unless landowner knew/should’ve known of hazardous
condition (reasonable person analysis-visual inspection, wouldn’t have shown, burden too high to cut every tree)
 Artificial Hazards: general duty to prevent unreasonable risk of harm by taking reasonable precautions to protect
those who may be walking by (probability/burden analysis in baseball field)
o Invitee (business purposes or members of public invited onto land for purposes which land is held open)
 Duty to keep premises reasonably safe & inspect for latent defects
 Reasonable efforts to fix dangerous conditions
 Warnings insufficient if fail to alleviate danger or reduce risk
 If invitee goes outside area of invitation, becomes a licensor/trespasser
o Licensee (social guest)
 Duty to warn of hidden dangers known to host and refrain from hurting licensee
 No duty to take affirmative action to keep premises safe
 Might have duty to warn child licensees about dangers that would be obvious to adult
 Reasonable person (Barmore – burden of locking son up was too high)
o Trespasser: generally, no duty, except when:
 You discover them
 Knew or should’ve known of presence
 Reason to expect
 Policy reasons: not reasonably anticipated, trespasser assumed risk, contributory negligence/they’re the
wrongdoer
o Children Trespassers (must use reasonable care to protect children from harm from temptation with fence around pool,
etc.): May be held liable to children if:
 Reason to know they’ll trespass
 Something attractive to kids (e.g. pools)
 Children ignorant of risk
 Must be unreasonable risk of death/serious risk of harm

 Landlords generally have no duty to tenants (or social guests), because when the land is leased to a tenant, it’s the equivalent of a
sale. Exceptions:
o Fails to disclose known nonobvious dangerous condition known to lessor and unknown to lessee
o Conditions dangerous to persons outside premises
o Premises are leased for admission to public: lessor has affirmative duty to exercise reasonable care to inspect and repair
premises before possession is transferred to prevent any unreasonable risk or harm to the public who may enter.
o Parts of land retained in lessor’s control (common areas) that tenant is entitled to use
o Landlord contracted to repair: implied warranty of habitability that the premises are habitable and safe for human
occupancy in compliance with provisions of municipal housing code and will remain so for the duration of the tenancy.

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 This implied warranty creates a contractual obligation on the lessor to repair the premises to keep them in compliance
with the municipal housing standards as set forth in the municipal housing code.
o Landlord negligent in making repair
 If not in contract, don’t have to do it, but if you do, can’t be negligent. If you are negligent, liable to injuries to
tenant or others on the promises if the tenant doesn’t know nor should know that the repairs have been
negligently made.
 Icy sidewalk: no liability because tenant knew repairs hadn’t been made. Could’ve said landlord should’ve done it
because low burden, zone of danger.
o Reasonable steps to protect from crime if crime is foreseeable.
o Consider relative position of parties – landlord has control of common areas used by tenants and is the only one with the
power to make repairs to take protective measures.
o Relationships: no relationship with either tenant nor tortfeasor – no duty?

 Failure to Act: a person generally has no duty to act, but does assume a duty in some instances:
o Rescue Doctrine
 Generally, no duty to rescue, but if you voluntarily undertake a rescue, you assume a duty to proceed in a non-
negligent manner and provide reasonable care, not discontinue aid if it would leave P worse off
 Note: negligent D has a duty to third party rescuers that come to aid of plaintiff because “danger invites rescue”
and a rescue is foreseeable
o Duty to not interfere with rescue/possibility of rescue
o If you caused the harm (or are involved in it) and you know you caused the harm, duty to rescue or render assistance
 Escalator case: injury resulted from instrumentality under control of D, so D had to help
o Duty arises from a special relationship: one party has control/ability over person/area and other doesn’t
 Duty if D should have taken measures to protect P (special relationships)
 Sex abuse case: wife should’ve protected the girls (relationship of wife to girls as a trusted adult in
position of power and control gave duty to warn but act reasonably)
 Duty if D should have prevented harm to P by controlling 3rd party (special relationships)
 Medical professional: if they learn X poses a specific danger to an identifiable P, duty to use reasonable
care to warn/prevent (Tarasoff)
 Social hosts – controversy here, some say liable
 Owner of car and possible drivers (negligent entrustment)

 Emotional Distress (you were negligent and only thing that resulted was emotional distress)
o Duty to guard against ED? Or proximate cause (is ED without physical impact foreseeable?)
o If D causes physical impact to P, liable for all harm (including ED)
o ED without physical impact
 No physical symptoms, usually no recovery (exceptions for mutilation of dead bodies & wrongly announcing a
death)
 Physical symptoms – recovery allowed
 If P was in the zone of danger (endangered by conduct)
 Illness, miscarriage, etc.
o ED for Bystanders
 Must be in the zone of danger & witnessed injury
 Related to victim by blood or marriage
 Experienced severe emotional distress – reaction beyond that which would be anticipated by a disinterested
witness and not an abnormal response in the circumstances
 Unborn Children
o Wrongful Death – One Breath Rule
 Policy Issue: this says, if you’re going to be negligent, kill them!
o Wrongful Birth – brought by parents
 Parents can have an action for failure to diagnose the defect (wrongful birth) or for failure to properly perform a
contraceptive procedure such as sterilization
 Can seek damages for the costs of raising the child (especially if defect)
 P must show: but for D’s N failure to diagnose a condition leading to a birth defect, P would have learned of the
danger and would have terminated the pregnancy.
o Wrongful Life ac - hard to bring, most jurisdictions do not allow
 Suit brought by child born with impaired condition to recover damages for “wrongful life” because of a failure to
diagnose a congenital defect or to properly perform a contraceptive procedure (no SOL for children).
 Doctor has duty to make sure you aren’t born & duty breached because negligence left me alive?

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  Procanik – allowed damages for extraordinary medical expenses suffered by whole family, not for emotional
distress or diminished childhood (how do you compare non-existence to impaired existence?)

 Pure Economic Loss – NO DUTY OWED – liability could be limitless and we can’t insure for it
o Negligence is harm to person or property and property is not economic loss
o If only damage that occurs is pure economic loss, you can’t sue (ex. negligent driver harming exit sign, exit closes,
businesses suffer)
Breach
Was the duty breached?
 Prove breach by: showing D failed to act as a reasonable person.
o First: show D imposed unreasonable risk of harm
o Second: what D could’ve done differently that wouldn’t have imposed unreasonable risk
 B < PL
o Likelihood conduct will injure others/expose them to risk (probability/foreseeability)
o If harm occurs, seriousness/gravity of harm (if harm results, how bad will it be?)
o Interests that must be sacrificed to reduce or eliminate the risk (burden)
 Did D take precautions that a reasonable person would have?
o B>PL: burden must be higher than P & L to argue no liability
 P will argue that the risk and gravity of harm are high, burden is low
 D will argue burden is high, risk and gravity of harm are low
 Social Utility: does the social utility of the conduct outweigh risk and gravity of harm?
o Consider if interests can be advanced/protected by a less dangerous course of conduct

Other factors:
 Custom: adhering to customs, particularly an industry custom, can be evidence of exercising due care – but not if the entire industry
is acting in an unreasonable or negligent way.
o So, was there a custom in this industry? Did D comply with the custom?
o P can argue deviation from custom (D – it was reasonable to do so)
o If D says they complied, P can argue compliance was unreasonable because the entire industry/custom is unreasonable
 Circumstantial Evidence (can be rebutted, but can be used) – often regarding dangerous conditions on premises
o D had actual or constructive notice of dangerous condition on premises (risk)
 Notice only required for unordinary occurring dangerous conditions (not required if hazard is continuous or
easily foreseeable – pizza counter case)
 Condition posed an unreasonable risk of harm & did not exercise reasonable care to fix it & failure to fix was
proximate cause of injury
 Example: failed to perform reasonable inspection (UNLESS inspection wouldn’t have found defect (tree
case)
o Examples: guy with bloody knife over body, banana peel on floor
 Failure to warn may be negligence, but giving warning doesn’t immunize D
 Res Ipsa Loquitor: event occurring is evidence of negligence in and of itself (indirect evidence)
o When people are responsible to make sure something doesn’t happen (such as a train derailing), can assume negligence
when the thing does happen
o Elements:
 Accident occurred
 No direct evidence of D’s conduct
 The instrumentality that produced injury was in defendant’s exclusive control
 P must negate other possibilities (only to 51-49)
 Multiple Ds? Usually RIL only if special relationship
 Doctor case – patient suffered unusual harm, can’t determine which D caused it, so all liable
 The event seldom occurs without negligence (Wouldn’t occur in ordinary course of business with D using
ordinary care)
 Evidence: common experience, expert testimony
 Must show most of the time, event only occurs because of negligence
 Plaintiff didn’t contribute (CN = probably no RIL)
o Creates inference of N that jury can or cannot accept
o Three ways for courts to look at:
 Majority: inference of negligence – jury gets to decide if there was N
 Rebuttable presumption of N: N is presumed (51-49) unless D can push it back to 50/50 (D can argue, offer other
potential explanations)
 Presumption of N AND burden of proof on D: D must prove 51-49 that D wasn’t negligent

Violation of Statute (not separate COA, use in N analysis if statute present)

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  If Negligence Per Se, establishes duty & breach (PC sometimes because if in statute, it’s foreseeable)
 Negligence Per Se: P can sue for violation of statute designed to promote SAFETY if:
o P was part of the class of individuals that statute was designed to protect
o P’s harm that occurred is of the kind the statute was intended to prevent
 Factors to consider in applying:
o Does the statute clearly define what is prohibited or required conduct, to put citizens on notice of what is required of
them?
o Would applying it create liability without fault?
o Would applying it impose ruinous liability disproportionate to seriousness of D’s conduct?
o Did injury result directly or indirectly from conduct?
 Methods of judging the effect of the statute violation:
o Negligence Per Se – unexcused violation of statute
 Applies to most violations of statutes and safety violations
 P carries burden of proof for negligence, D can only argue causation & defenses
o Rebuttable Presumption of Negligence (regulations, general city orders)
 Negligence is presumed to have occurred unless D can prove otherwise
 Carries for P, but D can fight it by providing evidence to make it 50/50
 P wins (51/49); loses if 50/50
o Evidence of Negligence (voluntary/industry standards)
 Requires further proof, helpful for jury but not determinative
 Excuses for non-compliance (I violated the rule, but my actions were reasonable because)
o Ignorance of need (unaware statute in effect)
o Violation reasonable because of my incapacity
o Reasonable attempt to comply
o Confusion to public
o Greater risk of harm if I complied
o Emergency not of my own making (cannot use emergency doctrine when reasonable party would anticipate an
emergency)

Cause in Fact
Did the breach cause the harm? Not enough for injury & negligent act to co-exist, specific act must have caused that specific injury
 TEST: Whether D’s N act was a substantial factor in bringing about the harm: it was a substantial factor if but for D’s negligent act,
harm would not have occurred.
o Would the harm have occurred without the breach?
o Must prove with relative certainty that harm would not have occurred “but for”; possibility is not enough
o “Might not” doesn’t break causal chain; D must show harm more likely than not (51-49) would have happened anyway
 Concurrent Causes (such as fires) – substantial factor test
o Was each D’s N a substantial factor?
o When separate acts of negligence combine to cause a single harm, each D is responsible for entire harm (even though each
act alone may have caused it), unless D can prove his N act was not cause in fact
o Burden shifts to D to exonerate themselves & show other D caused harm
 Independent tortfeasors can be held jointly liable if it’s impossible to tell which one caused the injury (gun shot
case) because relative position of the parties – better D than injured P
 Prescription Medicine
o Use statistics to show more likely than not
o 5/100 – harm naturally occurs; 10/100 harm occurs when on medicine
 Not conclusive because 5/10 could have gotten it naturally, 11/100 would work
 Medical Malpractice
o If P had greater than a 50% chance of survival, if doctor reduced P’s chance of survival, can be cause in fact (even it below
51/49 threshold)
o Even if P probably would have “died anyways”, if D’s actions reduced patient’s odds, then malpractice may still have
caused the death

Proximate Cause (limitation)

Proximate Cause is used, after cause in fact, to determine if action is actionable based on considerations of:
 Foreseeability: D should have reasonably foreseen the harm (zone of danger)
 Direct/Natural/Immediate: N defendant responsible for proximate results of actions, not remote results
 Superseding Criminal Acts
o Common sense: conduct that is not reasonably foreseeable, but rather is “highly extraordinary” can sever liability (guy
crossing dark, busy, rainy interstate to get bumper isn’t foreseeable, intervening cause)
 Policy: as a matter of policy, should we hold them liable for their N act? Where do we draw the line?

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Determining Proximate Cause
 Foreseeability: D should have reasonably foreseen the harm. (Framing – D frame narrowly, P frame broadly)
o Elements:
 Reasonably foreseeable result or harm (Zone of Danger!)
 D liable even if harm remotely foreseeable
 Liable if P is member for class that could be foreseeably harmed
 Liable if harm is of the same general sort that made D’s conduct N
 No superseding intervening force that cuts off liability
 “Highly extraordinary actions”
 Acts of Nature
 Suicide when not driven by irresistible impulse caused by original N
o Extent & precise manner in which harm occurs doesn’t need to be foreseeable
 The exact consequence that results doesn’t have to be foreseeable. If it was foreseeable that the act would *cause
harm*, the fact that a different harm occurs than what the actor foresaw is irrelevant.
o Thin skull rule: D takes P as he finds him, including any susceptibility to injuries that he had.
 But, P can only recover from D for injuries proximately caused by D and burden of proof for such recovery is on P
(so can recover for aggravated injury)
 P cannot recover for injuries received subsequent to and separate from any act of wrongdoing by D (so, gets in
car accident 10 years later and prior injury aggravated)
o Intervening cause not a defense if D should’ve foreseen the possibility of that act (ex. rescuer doctrine – foreseeable that
rescuers will come and may be exposed to harm)

 Direct, natural, & immediate (harm not too attenuated in time and space)
o Harm is direct, natural result of negligence; liable for consequences that flow from an unbroken sequence (not too remote)
o Usually, if harm is on DNI it is also foreseeable, BUT if there is a difference, foreseeability test determines the outcome
 Superseding Criminal Act: cuts off liability of D
o UNLESS, the risk that made your action negligent is the risk of that criminal act
o Example: the risk of rape is what made D’s conduct (dropping off woman in a bad area) negligent – so you’re still liable
 Policy/Sense of Justice

Defenses
 Unforeseeable because not in zone of danger
 Unforeseeable because of some intervening act that was extraordinary under circumstances
 Superseding Criminal Act
 Harm too far removed from conduct (too attenuated in time and space)

Affirmative Defenses to Negligence

Plaintiff’s Conduct
 Contributory Negligence is OLD RULE (completely barred P from recovery if he was at all negligent)
 Comparative Negligence: P’s negligence was the superseding cause! Based on percentage of fault. (doesn’t apply in intentional
torts)
o Pure: damages reduced by proportion of P’s negligence (10% at fault, 90% recovery)
o Modified: damages are reduced by proportion of P’s negligence up to where P is 49% or 50% N, then barred from recovery
 50%: P can only recover if his negligence does not EXCEED D’s
 If 50/50, P gets half
 49% P can only recover if he was at fault “less than” D
 If 50/50, P gets zero
 Jury instruction must be precise because people assume 50/50 is half
 If multiple D’s N is combined to create % caused by D
 Assumption of Risk (bars recovery for P, but some jurisdictions have combined with CN to make it proportional)
o Express: sign an express agreement assuming risk & saying P will not hold D liable for certain harms (exculpatory
clauses). Generally enforceable, UNLESS:
 Intentional harm or gross negligence
 Unequal bargaining power (contract of adhesion)
 Public interest (business performs a service of great importance to the public – shouldn’t contract out of liability)
o Implied: must know about risk, appreciate its magnitude, and voluntarily assume it
 Actual knowledge (subjective) about that particular type of risk
 If there’s no alternative, not voluntary, not assuming risk
 CN & AR together create a fairness problem in equating liability with fault
o Some jurisdictions combined, some allow AR, some allow AR but abolish total bar to recovery
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  Some situations where AR & CN aren’t interchangeable
o Driving instructor, teenager wrecks car, instructor wants to recover
o He assumed the risk. But CN? He exposed himself to risk but he wasn’t negligent because there’s a social utility to this that
outweighs potential N.
 CN v. AR
o CN: P was negligent (failed to exercise reasonable care) & his N contributed to harm
o AR: P knew about risk and voluntarily accepted it

Immunities
 Interspousal Immunity (can’t sue spouse) – has been mostly eliminated
o Shouldn’t immunize tort-feasors or deny remedy to victims
o Exception for car accidents
 Parental Immunity – immune from suit for negligent supervision
o Exceptions for automobile accidents or operating a business (same duty of reasonable care) and physical abuse
(intentional torts)
o We want to allow for parental discretion (reasonable parent standard?)
o Also applies in loco parentis (standing in place of parents – financial support, emotional support, education are evidence of
this)
 Charitable Immunity: mostly abolished because charities often act as big businesses today
o Availability of public liability insurance and deterrence (no immunity for hospitals)
o Policy: immunity fosters neglect and irresponsibility, liability promotes care and caution
o Charities try to justify: trust fund theory (when giving donations, people don’t want their money going to insurance
payments); implied waiver (beneficiary of services impliedly agrees to assume risk and waive right to sue – but situations
where people have no legal capacity to consent)

 Employer Immunity – because of worker’s compensation, allowing employees to recover from all injuries on the job, an employee
injured on job cannot file tort claim against employer in most circumstances

 Federal Government: via FTCA, U.S. waived immunity for many tort claims
o Can sue government for 1) negligent/wrongful acts committed by employees that are 2) within scope of employment
o Still immune from suit for intentional torts, libel/slander, SL
 Only can see for intentional torts if its within their job (i.e. police)
 Cannot sue for military activity (don’t want second-guessing of military decisions)
o Immune from discretionary acts, i.e. decision-making that involves an element of judgment/choice
 No judgment or choice involved? Probably not discretionary.
 To be immune, it must be done in the service of a social, economic, or political goal – was this judgment the kind
this exemption was designed to shield?
o NOT immune for ministerial acts (operational level, don’t require exercise of judgment, acts are those that implement or
effectuate policies)
 Examples: government may be liable if one of its agents negligently drives a car, negligently fails to maintain
government premises, or negligently fails to maintain public roads
o Westfall Act: federal employee has immunity for acts undertaken in the course of their official duties. U.S. government is
substituted as a defendant in place of the employee and the action is governed by the FTCA.
o IN PRODUCTS LIABILITY – government contractor may assert such a defense if the contractor conformed to reasonable,
precise specifications approved by the government and warned government about any known dangers in the product
o Additionally: if suing, SOL is ten years
o EXAMPLE: The discretionary function exception to the Federal Tort Claims Act (FTCA) provides that the United States
cannot be sued for the performance of a discretionary function or duty of a federal employee if the conduct is grounded in
the social, economic, or political goals of the employee’s governing guidelines. In this case, the relevant governing
guidelines come from the Fair’s handbook. As an initial matter, the court determines that the rangers’ conduct was
discretionary because the Fair handbook specifically stated that rangers were to use their own discretion when making
arrests at the Fair. Moreover, the court determines that the rangers’ termination of Deuser’s arrest was properly grounded
in the social, economic, and political goals of the handbook. (Example from Deuser case)

 State Government Immunity:

o Many states have waived immunity similarly to federal gov. Can only sue if waiver and to extent waiver allows.
 Immunity for discretionary acts, legislative, and judicial decision making
 When federal or state immunity still attaches, it also, as a general rule covers not only “the government” but the
various federal and state agencies as well.
o State agencies (prisons, hospitals, educational institutions, conservation districts, commissions for public works)
 These are immune; however immunity is WAIVED for negligence, EXCEPT on matters that are discretionary

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  NOT IMMUNE FOR DISCRETIONARY ACTS
 If quasi-public entity, look at its function: if hospital, maybe not immune even if state run
o Many states have acts similar to the FTCA, stating that the only COA available for victims of torts committed by public
employees is an action against the public entity the employees work for (state agency/institution).
o However, such statutes limiting claims for torts committed by state employees to claims against the state violates the
constitutional right to remedy (if state constitution has remedy clause). Legislature may modify form/measure of
recovery, as long as the injured party still has a remedy of similar qualities.

 Municipalities - not sovereign unless given sovereign rights from state/fed

o If give rights from state, can have immunity as long as it is a government function.
o Many states have abolished municipal immunity to same extent that they have waived their own immunity – abolishing
immunity for everything but discretionary acts and policy decisions.
 If abolished, “public duty” doctrine
o Public duty that is owed to the public at large (such as duty of police to protect citizens), is not owed to any particular
citizen, and no liability exists for failure to provide police protection in the absence of a special relationship that gives rise
to a special duty.
 Assumption of a duty to act (misfeasance); knowledge that inaction could lead to harm (multiple credible
complaints), some form of direct contact between agents and injured party that justified reliance on the
municipality performing a duty (911 call that said – on our way – relied on that, negligence increased risk to P)
o Governmental functions such as police, fire, courts, etc. have immunity
 However, if a special relationship arises to create a duty, immunity is waived
o Propriety functions (one that could be provided by a private corporation), such as utilities, maintaining an airport parking
lot, etc. have NO immunity
 If the city collects revenues by virtue of providing the service, evidence that it is propriety
o If the state has authorized a municipality or municipal corporation to purchase liability insurance, that can be an implied
waiver of immunity.
o EXAMPLE OF CITY MAYOR BEING SUED: The residents are suing Boyd for Negligence and the City of Flinn as vicariously liable under the doctrine of
respondeat superior for Boyd’s negligence. Argue he was an employee and he was acting within the scope of his employment when he harmed them. City of Flinn will
argue that he was not acting within the scope of his employment. Boyd will state that he has immunity under the Westfall Act, you cannot sue me, you can’t sue the
state, because was acting within discretionary function.
Residents will argue ministerial act, as evidenced through A, B, C, so you have a duty through the Westfall act, which establishes liability for ministerial acts.
o IF A STATUTE IS INVOLVED – EVIDENCE OF A MINESTERIAL ACT (FLINN CASE)

 Public Officials as Individuals

o Absolute Immunity for actions on the job for judges, legislators, executives, governors
 Applies even if it is clearly motivated by corruption, malice, etc. (judge in chambers example)
 Actions on the job – very broad
o Qualified immunity for prosecutors, officers for acts on job
 Can be lost if a reasonable person in that situation would know their actions are violating a statutory or
constitutional right (ex. prosecutor burning evidence)
o If your employer/joint D is a public official with immunity – no indemnification or contribution
o OFFICIALS: people that exercise police power. So, not all government employees, but don’t have to be elected.

 If a governmental immunity has been abolished, official immunity may protect an individual public official. Conversely, when the
state has not consented to be sued on a matter, a public official may be personally liable if the conduct doesn’t come within
immunity.

Statute of Limitations (and Repose)

 General Rule: cause of action accrues when injury occurs
o SOL is usually 1 year in intentional torts because you should know
 Discovery Doctrine (Latent Injuries)
o COA accrues and SOL commences to run when patient discovers, or in the exercise of reasonable care and diligence to his
own health and welfare, should have discovered resulting injury.
 Tolling: when we halt the running of time within which to file
o Minors – don’t start til 18
o Mental incompetence (coma)
o Party at fault took affirmative actions to conceal injury
 Notice of Claims Provision for Government Entities: if you want to sue a government person, must notify the department
o May be very short, like six months after injury occurs
 Statutes of Repose: put an end to liability at a certain time (usually 20 years)
o Don’t want to keep people potentially liable forever
 Wrongful Death Issues

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 o WD statutes usually contain their own time period and in states with such statutes, that time limit rather than general SOL
controls WD action

Damages: after you win, how much do you get?

Satisfaction Doctrine: you can only recover once. (Once you get 100%, that’s it)
Types of Damages (Compensatory– make plaintiff whole again v. Punitive)
 Economic – (what victim paid out of pocket)
o Lost wages – (unpaid time missed from work)
o Lost future earnings (present value, sometimes the offset method – interest rate and inflation cancel out)
 Consider career and length of career had you not been injured (can be speculative)
o Medical expenses (past and future)
o Damages to property, etc.
 Non-Economic
o Pain and Suffering
 Must be conscious/can’t be in coma
 No real market value, so hard to evaluate
o Permanent Disability or Disfigurement (loss of function)
 Functional destruction – everything is harder for me now and I can no longer function as a normal person.
o Hedonic damages (loss of enjoyment of life)
o Many states have been capping these (bad – that’s where you make up for attorney fees)
 Punitive: meant to punish or deter & makes it possible to take cases with low compensatory damages
o Specific deterrence (you as a person) v. general deterrence (to society)
o Usually malice is required (ill will) OR conscious disregard of property of harming someone
o No right to them, because they aren’t about making you whole
o Burden is higher – “clear and convincing evidence”
o Factors in evaluating:
 Degree of reprehensibility of conduct
 Ratio to compensatory damages
 Few awards exceeding a single-digit ratio will satisfy due process (maybe particularly egregious act only
small amount of compensatory damages)
 Stay under double digit ratios
 Disparity between award and “penalties in comparable cases”
 Defendant’s wealth – it has to hurt
o Public Policy
 Not predictable – good and bad
 Deterrence
 Particularly effective for cases of products liability, because companies will sometimes conclude it is better to
accept some compensatory damages (build into business model) than fix the problem
 Shouldn’t cap because then can just build into business model too
o Defendant can ask for remittitur if thinks award is too much

Rules Regarding Economic Damages

 Collateral Source Rule: don’t have to admit evidence that plaintiff was compensated by anyone other than the defendant (i.e.
gofundme, parents) (many states have limited this)
o P can submit expenses and get recovery for things already paid for by parents, etc. as gratuitous gifts
o CAN admit evidence to rebut/impeach P’s testimony – show P continued to work, attributed his condition to some other
cause
o Relative position of the parties: if anyone gets a windfall (free money) or benefit, it should be the victim, not tortfeasor
 If insurance company pays P, D still has to pay, and it’s not double recovery
o You pay for insurance premiums and sick days
o Subrogation: once P gets money from the tortfeasor, insurance company will demand their share from P’s money
 Maximum Recovery Rule: court will overrule a jury’s determination of damages only if damages exceed the maximum amount a
jury could reasonably find based on evidence
o Judge may set a maximum amount for what jury could reasonably calculate damages to be and reduce the verdict to that
amount
o Judge can adjust damages if finds award “shocks the conscience” or is “grossly excessive”
 Use expert testimony to establish economic damages based on predictions of interest rates and inflation, may still be able to get
damages above amount specified by expert testimony depending on what testimony accounted for

Damages for Physical Harm to Property

 Destroyed: get replacement value
 Damaged: difference in value (repair measure)
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  Deprivation: consequences of that deprivation (e.g. rental costs)
 If no value, no money (ex. pets)

In a personal injury case, can get damages for five elements in same trial: past physical and mental pain, future physical and mental
pain, future medical expenses, loss of earning capacity, permanent disability and disfigurement

Joint Tortfeasors
 When two or more tortious acts combine to proximately cause an indivisible injury to a plaintiff, each tortfeasor is jointly and
severally liable for that injury. This means that each is liable to the plaintiff for the entire damage incurred. Joint and several
liability applies even though each tortfeasor acted entirely independently. Applies to concurrent and joint tortfeasors
 When multiple D’s are substantial causes of P’s indivisible harm (i.e. death, fires), all and equally liable
o Applies to concurrent and joint tortfeasors
o Shifts burden of proof to D to prove 51/49 it wasn’t D
o P can decide who to sue, from whom to recover, and what portion to collect from each
Types
 Acting in Concert: actors’ actions jointly induce/encourage the tort (racing case)
o Joint creation of risk – don’t have to know each other, don’t have to have substantially participated
o JSL applies even if harm is divisible
 Independent Actors causing Indivisible Harm (e.g. death or pollution): multiple defendants whose tortious actions are independent
but unable to be divided
o Unfair to put P in position of having to prove apportionment of responsibility for harm
o JSL doesn’t apply if harm is divisible (but maybe if it is not practically divisible)
 Independent Actors failed to perform a common duty (Vicarious Liability & Products Liability)
 Successive Tortfeasors of Related Accidents: if first injury puts P at risk for 2 nd injury which does occur, 1st is liable for successive
injuries (driver hits biker, biker injured in ambulance by malpractice)

Apportionment of Damages
 JSL: each D is liable for 100% of damages to P, D has to cover insolvent D, P doesn’t suffer (relative position of the parties)
 Comparative Negligence: each D liable for their share of damages (you’re 20% at fault, you pay 20% of damages)
o Some jurisdictions don’t apply JSL in comparative N system, but without it, if insolvent D is 80% at fault, P is out 80%
 Contribution: right of tortfeasor to collect equitable share from other liable D
o Only get what you paid in excess of your share
o Only allowed for parties P could have sued in original N claim (can’t seek contribution from party w/ immunity)
o Not allowed in intentional torts
 Indemnification: available when D was only “technically” liable but the other was the “active” tortfeasor. (Example: employer can
indemnify employee for wrong they paid for)
o Person without fault can seek recovery from wrongdoer since they paid for their wrong. Only brought by a non-guilty D
against guilty D. (If other guilty D is immune, no contribution or indemnification)
 Enterprise-wise liability/Market Share
o When multiple manufacturers are responsible for a single N-made item (and you can’t tell which one manufactured the
item at issue), then the manufacturer’s market share determines responsibility.
o It is used in product liability cases. If P cannot prove which of 3 or more persons caused his injury but can show that all
produced a defective product, the courts will require each of the D’s to pay that percentage of P’s injuries which that D’s
sales bore to the total market sales of that type of product at the time of injury. The theory is used most often in cases
involving prescription drugs. And use a national (as opposed to local) m.s.
o Example
o The court held, that any manufacturer who cannot show that it could not have produced the particular doses
taken by P’s mother will be liable for the proportion of any judgment represented by that manufacturer’s share of
the overall DES market. (Sindell v. Abbott Laboratories). The D’s are held liable for their market share. If have
50% m.s, then they are liable for 50%. Some courts follow this rule, while others reject it and say that they must
prove that the D sold the pill that damaged the P.
 If independent concurrent acts cause distinct and separate injuries to P, AND there are reasonable means of apportioning damages,
D’s won’t be held jointly and severally liable.

Statutory Causes of Action (statute allows you to bring COA)

Wrongful Death – without negligence, decedent wouldn’t have died. New COA is created by the death of an individual due to
tortious conduct of another on behalf of beneficiaries defined by statute.
 Parasitic claim (so need intentional tort, N, etc.) – you committed a COA that caused death
 Who gets to sue: beneficiaries (spouse, kids, sometimes parents)
 What they’re recovering: pecuniary loss – financial effect/harm to those left behind (economic loss to those left behind)

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 o Mainly loss of support – measured until “first” person would’ve died normally
 Must show what would’ve been provided to them (income) and amount of reliance
o Can also include loss of companionship and comfort
o Can recover for non-working spouse because household services have economic value
 Cannot recover for emotional suffering or life (cannot be monetized)
 Regarding minor children: damages can include loss of society, comfort, companionship of child
 Often capped with life expectancy of decedent and beneficiary because that’s when you’d stop being supported by them
 Can be double recovery problem if sue when alive, gets recovery, dies, beneficiaries sue for the same lost earnings (so many
jurisdictions say = recovered while alive, can’t bring wrongful death)

Survival (statute)
 Keeps COAs/claims alive that would have expired with death of person
o Even if death of P is independent of D’s wrongdoing
o COA for personal injury survives death of P or D or both
o Keeps claims alive that could’ve been brought against you while alive (estate can be sued)
o Damages that can be recovered are the same as if you were alive
 Who gets to sue? Estate for dead guy. (After estate probated, estate’s dead; SOL is length of estate)
 What are they recovering? Damages suffered before death.
o Pain and suffering, clothing, medical expenses – all claims gone if just do WD
o Without this, D can get windfall – lucky he killed him
 Survival statute kicks in regardless of how P dies b/c we don’t want D to get “lucky”
o OR suing dead guys estate for damage he caused
 Survival & wrongful death can exist together, but not always.
o If wrong did not cause the death, can’t use wrongful death COA
o Potential problem of double recovery can be solved by only giving survival lost wages up til moment of death

Vicarious Liability
 Because of some relationship, party w/o fault may be held liable for harm caused by N of another
 Parasitic on another claim (negligence, intentional tort, etc.)

Respondeat Superior: an employer is liable for the negligence of an employee acting within the scope of employment. (Side note: generally
cannot sue for intentional torts unless in nature of job (i.e. bouncer).
Three Elements:
 An Employee
o Independent contractors don’t count unless it is a non-delegable duty (can’t delegate liability to IC if): 1) act involves a
grave risk of serious bodily harm or requires special precautions, work is done in a public place; safety statutes impose a
specific duty (example, blasting next to public policy)
o However, look beyond the title. Factors to consider: right of employer’s control over the person’s time, existence of
uniforms, discipline, supervision, length of employment, who supplied the tools, employer’s control over physical details of
work.
 Who is acting within scope of their employment: if employee was acting with intent to further employer’s business purpose
o Going and Coming Rule: during an employee’s commute, not acting within the scope of employment because the
employment relationship is suspended (no VL)
 Exception: when an employee endangers other with a risk arising from or related to work – ex. car accidents on
way home from drinking at work
 Foreseeability test –was the occurrence a generally foreseeable consequence of that activity?
 I.e. in the context of that particular enterprise, the conduct is not so unusual or startling that it would
seem unfair to include the loss resulting from it among other costs of employer’s business
 Rule: the doctrine of respondeat superior applies to an employee’s drive to or from work if it is foreseeable that a
danger arising from or related to the employee’s work will cause harm to others during the drive.
o Slight Deviation Rule: if activity is a slight deviation from employment, can still be found within the scope and vicarious
liability can apply (frolic v. detour)
 Detour: VL applies to minor deviations from employee’s usual business activity if sufficiently related to
employment
 Frolic: generally a very great or substantial deviation from employee’s normal activities, and vicarious liability
does not apply. (May be the pursuit of personal business, leaving during the day and causing harm while doing
something completely unrelated to work).
 Factors considered: intent; nature, time, and place; time consumed, work for which employee was hired,
incidental acts reasonably expected by the employer, freedom allowed the employee in performing job

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  General rule: an employer is within scope of employment when performing services for which he has been
employed, or when he is doing anything which is reasonably foreseeable as being incidental to his employment.
 Harms Another: someone must have been harmed by the employee’s actions/negligence.
 Policy Reasons:
o The employer should absorb costs of its enterprise (e.g. employees) because they get the benefits of the enterprise.
o Employer is also in the position to minimize risk
o Consider whether employer was N in hiring or supervising employee?
 Defenses of Employer: independent contractor, on frolic

Joint Venture/Enterprise: commercial concept, about holding one/all business partner(s) liable for the negligent partner. 2+ parties share
interests in profit.
 Elements:
o An agreement among the group
o Common purpose carried out by group
o Pecuniary Interest in that purpose among members
o Equal right of control among members
o Business/profit/commercial motive (don’t want to apply to family undertakings)

Bailments: negligent kid, parents liable, family car doctrine (mostly replaced by statutes)

Strict Liability (Liability Without Fault)

Always sue for N & SL, if N is inadequate – no way to eliminate risk – SL

Animals (Livestock, wild animals, domesticated animals)

 Trespassing livestock – owner liable if damage is caused
 Wild animals – owner strictly liable for injury
 Domesticated animals – strictly liable if know or have reason to know of dangerous propensity
o P must prove that owner knew or should’ve known of dangerous propensity (if P can’t prove, must prove N to recover)
 Must prove under D’s control & cause in fact of harm.

Abnormally Dangerous Activities (examples: crop dusting, toxic chemicals, nuclear reactors, explosives, NOT guns)
 Abnormally Dangerous
o Existence of high degree of risk of some harm
o Likelihood that harm that results will be great
o Inability to eliminate risk by reasonable care ** (most important)
 SL for activities in which no degree of care can truly provide safety
 If you can eliminate the risk through reasonable care, N
o Extent to which activity is not a matter of common usage
o Inappropriateness of activity to the location
o Cost-Benefit to the community – extent to which value is outweighed by dangerous attributes
 Under D’s control
 P is harmed
 Harm caused is the type of harm that made the activity SL

Rylands Test
 One who carries on an abnormally dangerous activity is subject to liability for harm resulting from the activity, even if he has
exercised the utmost care to prevent the harm. (But activity has social value, so we won’t prohibit it, you just have to pay for any
harm).
 If you bring onto your land & keep there anything likely to harm if it escapes, you’re strictly liable for any harm caused by escape.
 Something natural in unnatural state – SL
Ways to reduce risk
 Frequency – reduce chance of harm
 Location/place – reduce gravity of harm
Posner Standard from Indiana Harbor Belt:
 Can due care adequately eliminate the risk? Because if so, then N.
 Is potential harm very large? Consider whether the catastrophic harm would destroy evidence?
 What effect would strict liability have and do we want that effect? Often relocates activities or effects their levels (good and bad)

Defenses and Limitations

Affirmative Defenses
 Comparative Negligence

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 o P: “I was as careful as could be, had burden of X”
 Assumption of Risk
Limitations on SL
 Must show SL applies – state requirements, why it applies to these facts (framing)
 Proximate cause: the damage that occurred was the kind of risk that made the activity SL (other harms unrelated to the danger will
not make you liable)
 No SL for acts of God that D had no reason to anticipate (hurricane example)

Products Liability: Products liability is not a COA, but an area of liability for products that cause harm.
 Negligence
o Seller liable if creates unreasonable risk of harm to foreseeable user using or affected by product in a foreseeable manner.
B < PL
o Manufacturer duties: design, manufacturer, testing & inspection, packaging & shipping
 Warranty: express or implied
 Strict Products Liability: manufacturing defect, design defect, warning defect/failure to warn

Warranty
Warranties run with the products sold (from manufacturer  eventual customer), privity not necessary
 General Elements
o 1) D engaged in the business of selling a product; 2) makes representation of material fact (meaning a substantial factor in
decision to purchase); 3) P relies on the warranty (reliance is key – have to show you read the warranty, and it was a
factor in your decision); 4) Warranty is false and 5) P is harmed
 Doesn’t matter if D didn’t know the statement was false or if he believed it was true (good faith). If the statement
was false, you’re liable for harm.
 Express Warranty: warranties that are actually made (may include brochures, pictures, models)
o One engaged in the business of selling
o Makes express statement of material fact concerning quality/character of item
o Customer justifiably relied on that statement
o Representation/statement was false and P was harmed
o Privity usually irrelevant. So, if wife bought husband car relying on express warranty, and husband is hurt, he can
sue despite the wife being the actual purchaser. Also, husband does not have to know about the express warranty
as long as it was a reason the wife bought the car.

 Implied Warranty of merchantability/fitness: the thing that is sold is reasonably fit for the general purpose for which it is sold (all
products have this imposed by law)
o D is engaged in business of selling such a good
o Product is fit for the ordinary purpose for which it is sold
o P relied on such a warranty
o Something dangerous about the product that users would not reasonably expect (warranty false)
o Which causes injury
 Express warranties that try to limit liability are void due to public policy reasons (competition, incentive)
 Hard to sue retailer because have to show knew of risk (consumer complaint), did nothing
 Privity: extends at least to buyer’s family, household, guests

 Affirmative defenses:
o Puffery
o Disclaimers (“as is”) – but if injured can say this limit is unconscionable, not specific

Strict Products Liability

402A: Special Liability of Seller of Product for Physical Harm to User or Consumer
“One who is in the business of selling a product and sells such a product in a defective condition unreasonably dangerous to the user or
consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, even
though the seller has exercised all reasonable care in the preparation and sale of his product and the user/consumer did not buy the product
directly from or enter into any contractual relation with the seller”
 Commercial Seller of a Product
 Defective Condition Unreasonably Dangerous
o Unreasonably dangerous defines whether it is defective
o Unreasonable brings up risk-utility analysis and consumer expectations
 Product has not materially changed since it was made
 Product causes harm to a user of the product

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 o Includes anyone who can be foreseeably harmed by the product (any foreseeable plaintiff – user, consumer, or bystander
such as pedestrian injured when struck by automobile with defective brakes).
o Consider superseding causes and misuse

Introductory Notes
 Purpose of SL
o Distribution of cost to all those involved in production/marketing of product
o Allocative and Distributive: which is best to deter accidents and who should bear the costs?
o Rationale: it’s hard to prove negligence, and victims should be able to recover
 Incentivize safe products
 Consumers rely on the safety of products
 Manufacturer is the one who can control risk, absorb cost (RPP)
 Can win on SPL and lose on N, so always bring both (2 COAs)
 SL is not Negligence or Absolute Liability
o Not negligence because no knowledge requirement – we focus on product, not conduct
 Risks don’t need to be foreseeable because some only appear over time
 SPL – sue any seller in chain, N would limit to manufacturer
o Not AL because requirement of a defect (AL would mean no defect needed, just show you were hurt while using the
product) – companies aren’t insurers
 Any sellers in the chain can be sued (manufacturer, retailer, distributor)
o It might be difficult to sue the manufacturer (don’t know them, too far away – jurisdictional issues), so sue the retailer,
who can get indemnification.
 Indemnification here doesn’t necessarily mean the retailer has to be completely without fault in order to get
indemnification. If the retailer negligently fails to discover a product defect, they can still sue for indemnification
from the manufacturer, assuming it was defective when it left their control.
o Sellers/Retailers who may be part of chain
 Allowed against lessors (e.g. car rental agencies)
 Makers of component parts
 Many be SL in addition to manufacturer as long as manufacturer doesn’t materially change the
component
 Selling on e-bay, yard sale = no
o Retailers of used goods are typically not liable
 Outside of chain of production and marketing and product has already been under the control of one or more
consumer

Manufacturing Defect (sometimes difficult because accidents alter condition)

 Seller of Product
 Deviation from intended design at the time product left the manufacturer
o Doesn’t conform in some way to intended design (design specs)
o Compare to other products on the line to see nonconformity
o Cobalt Example – all the cobalts had the same defect so didn’t apply
 Defect caused in fact of harm

Design Defect (must show what defect is; typical ones include structural, absence of safety features, not suitable for intended purpose)
 D is commercial seller
 Design itself created an unreasonable risk of danger
o Unreasonable risk: dangerous beyond what would be contemplated by ordinary consumer
 Utility to user and public as a whole
 Probability of risk, seriousness of potential injury
 Availability of safer substitute that would meet the same need
 Manufacturer’s ability to eliminate risk without impairing usefulness or increasing cost too much
 User’s ability to avoid danger
 User’s anticipated awareness of danger
 Manufacturer’s ability to spread cost of safer alternative
o Consumer must typically prove a reasonable alternative design
o Consumer expectations: no consumer would ever imagine or expect such a risk, and therefore has an inability to prevent
the event from occurring or protect herself from harm
 Defect caused the harm
o D can argue superseding cause
 Four Tests (focus is NOT on manufacturer’s conduct, but whether the product, as designed, was unreasonably safe)
o Negligence Risk-Utility (more protective of D, evaluated at time marketed)
 B < PL to evaluate manufacturer

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  How foreseeable is the risk? How bad will the harm be? What’s burden to avoid it?
 Social utility – does the utility of the item outweigh harm?
o Risk-Utility at time of trial (more protective of P – risks sometimes only occur over time)
 Difference in time can affect outcomes – risk known at time, availability of safer alternatives defenses if
evaluating product at time made
o Consumer expectations: what would an ordinary adult consumer realize about the risk?

Failure to Warn – liable for risks you knew or should’ve known

 D is a commercial seller
 Manufacturer knew or had reason to know that the product posed a foreseeable risk of harm
o P must prove D knew or had reason to know of risk
o Required to warn of reasonably foreseeable misuse
 Harm could have been reduced/avoided with reasonable instructions of warnings
 Failure to warn caused injury (either didn’t exist or was inadequate)
 Adequacy of Warning Factors
o Dangerousness of Product
o Form in which product is used
o Intensity and form of warnings given
o Burdens imposed
 Other information:
o Usually no duty to warn of obvious danger
o Warning doesn’t render a defective product “un-defective”
o Most jurisdictions presume P read and heeded the warning
 Assists P in proving causation – I read the warning and was still hurt, so was insufficient
 D has to make it a toss-up (preponderance of evidence)
 Affirmative Defense: warned the intermediary, relying on them to pass the warning on to consumers (i.e. warned the retailer of the
car defect! They should have told consumers).
o Learned Intermediary Rule – mostly applies to drugs and products used by others (employer-employee) – drug
manufacturer can depend on doctor to rely dangers to patients
o In this situation, sue manufacturer for SPL, sue intermediary (in N and SPL if they sell the product); plaintiff should say
that the manufacturer’s warning to intermediary insufficient
o If direct marketing, sue for failure to warn

Services
 Question for services in SPL isn’t fully answered, so know arguments for/against
 Can consumer get this product from anywhere but (service place)? If it’s the exclusive place to get the product, strong argument for
SPL. Consider whether the place (like hospital) can influence the manufacturer. If hospital is only one who has the pacemaker, they
can refuse to sell the product, and then the manufacturer will lose its patient base – high incentive.
 Are they the final link in the chain before goes to plaintiff?
 Also consider whether the consumer has ability to make informed choice/shop around/find out about the defect
 What is the primary purpose? Hospital says their primary purpose is to provide the service of putting the pacemaker in; but
plaintiff can argue he came to you for that pacemaker, so you are selling it.
 Products liability is policy based, and all policy arguments boil down to either pro plaintiff or pro defendant
 Examples:
o If transaction has characteristics of both service/products, shouldn’t apply SPL if primarily service (doctors)
o Blood/tissue products aren’t products
o SPL imposed against licensors/franchisers, especially ones who retain quality control rights

Affirmative Defenses/Limitations
 State of the Art (best product given state of the art)
o Can fail on a risk-utility argument
 If social utility is low and risk is high, doesn’t matter if SOA – product shouldn’t exist
 If luxury item, shouldn’t exist.
 D can argue you’d eliminate a product line for this group
 Unforeseeable Misuse (bar to liability unless reasonably foreseeable & no warning given)
o Products have to be designed anticipating foreseeable misuses (P frame risk broadly)
 Contributory Negligence
o P’s negligence was the superseding cause – high-risk conduct apart from defect
 Assumption of Risk
o Ignored safety precautions, so voluntarily and knowingly assumed risk
 Compliance with Regulations

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  Actually a Service
 Immunities
o Express Pre-Emption: (Constitution based) – federal law pre-empts state law in areas where they are incompatible
o MDA is the only express pre-emption – outside of it, tort law & federal law co-exist
o Implied pre-emption - no statute
 If FDA approved, they’ve done risk-utility analysis
 So you want to bring warning defect case – D can argue FDA approval was implied pre-emption, but their
approval process allows to strengthen the warning
 Hard to find – if Congress silent, why should we say they meant this?
o Sellers of used chattels such as cars generally not liable

Nuisance
Nuisance: unreasonable interference with right to use/enjoyment of property
 Private Nuisance: unreasonable, substantial interference with P’s interest in his/her land
o Essentially, trespass without physical entry (can bring suit for both nuisance & T)
o Can have private nuisance without negligence, even if unintentional, if activity is abnormally dangerous/ultrahazardous,
because we are focusing on the harm/victim.
o Must be neighboring land to bring this
o Caveat emptor – “buyer beware” – can’t sue previous owner of land if you received deal in price because of potential
nuisance such as pollution.
 Public Nuisance: unreasonable interference with a right common to the general public
o Unreasonable:
 Substantially interferes with public health, safety, peace, comfort, or convenience
 Conduct proscribed by statute or ordinance
 Conduct is of continuous nature or has a permanent effect on the public right
o P suffers a harm unique from what was suffered by general public
o Note: tends to be a “catch all” for public problems; used by public officials to deal with gangs, etc.
 Reasonableness evaluation:
o Gravity of harm v. utility of the conduct
o Burden/ability to minimize the harm
o Locality of nuisance (can be fine in one place but not in another)
o Negligent or intentional
o What a reasonable person should be expected to endure (no hypersensitivity)
 For a lawful business to be a nuisance, must show location and/or operation are unreasonable.
o If it meets zoning requirements, no nuisance due to location alone.
 Can’t get damages for decrease in property value – only for nuisance actions.
o Is the operation the least intrusive? Would a reasonable store operate differently?
 Normal consequences of operation of business alone cannot be condemned as nuisance if it has a right to be
there.
 But, if it operates in an unreasonable manner, so as to produce great annoyance to others, it will be a nuisance
(etc. large amounts of trash, excessive lighting, etc.)
 Can find a nuisance even if the utility outweighs the harm if the harm is serious and payment of damages is feasible without
bankrupting the business (Utilitarian Test)
o Allows for damages without an injunction
o Business has the ability to spread the cost and absorb externalities
o You’re paying for the privilege of having a nuisance OR it is so important we will let you keep doing it, but must pay
impacted neighbors

Defenses and Remedies

Defense:
 Coming to the Nuisance: if P knowingly moved to the nuisance, remedy much less likely
o If the nuisance is affecting the public, nuisance must be ceased, but the party who must cease operations is entitled to
compensation
 Lawful business: if land is zoned for business you’re conducting, not a nuisance unless you commit acts that fall outside what is
reasonable for that business
Remedies: damages and/or injunction
 Possible resolution: polluting party must buy out surrounding land
 Permanent damages (injunction unless they pay): may be appropriate when the damages resulting from nuisance are significantly
less than the economic benefit of the party causing the harm.
o Party can continue the nuisance because they’ve bought the right to pollute
o Once damages are paid, no incentive to try not to pollute

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 o It also imposes a servitude on the plaintiff’s land, which is equivalent to a taking – only allowed for public uses
 Injunction postponed for a specified future date, giving them time and the incentive to solve the problem. But – may not be able to
find a solution, technological advances may not occur
 Courts balance the equites to decide if injunction should be granted
o Character/extent of harm inflicted
o Good faith v. intentional misconduct
o Social value of the conduct – interest of general public in continuance of D’s enterprise (consider location/market)
o Efforts to avoid injury by P
o Financial investment/economic hardships that will result to either/both parties in granting/denying injunction

Defamation (COAs – Libel and Slander)

General:
 Defamatory statement is one that exposes a person to ridicule or contempt (and it has to be specific to that person) or
causes harm to person’s reputation within the community
 Elements:
o A defamatory statement concerning another (the plaintiff)
 P must show statement reasonably interpreted by at least one person as referring to P
o Statement was published (communicated to a 3rd party)
 A third person heard it AND understood it
 Repeater: repetition of a defamatory statement is publishing
 Single Publication Rule: the item is considered published on its first publication date, and each distribution does
not cause a new cause of action to accrue

 Slander: spoken, so impermanent (must show damages to bring claim)

o Defamatory statement about P
o Statement was published
o Special damages (pecuniary harm) to sue (unless slander per se)
 Damages to trade, property, profession, occupation
 Pecuniary harm must be a loss tied to the loss of your reputation (because your reputation was harmed, you lost
$) (reputation caused the loss)
o Slander per se: four types where special damages are presumed because of gravity of harm
 Communications questioning P’s professional competence
 Crimes of moral turpitude (fraud, murder, etc.)
 Serious sexual misconduct (slander per se for women, not men)
 Loathsome disease (STDs, AIDs, leprosy)

 Libel: written or printed words – permanent, more people will see it (includes radio/tv broadcasts)
o Defamatory statement about P
o Published
o General damages are presumed (don’t have to be shown to bring claim, just after)
 Libel per quod: context required to see why it is libel

 Libel Involving Groups

o Can’t sue if: large group (~100+) and doesn’t specifically pick anyone out
o Can sue if: small group (~9) and every member is referred to
o Middle size group (25) can maybe sue if it says “most”
 Look for words such as some (can’t sue), most (can sue)
 Liability
o Primary publishes are liable even if they didn’t know it was false/defamatory
 Applies to the speaker and includes newspapers, books
o Secondary publishers are only liable if it’s shown that they knew or should have known the information was
false/defamatory (often distributors)
 Internet: internet service provider v. internet content provider
o Internet services providers are immune by STATUTE
 Cannot be held liable for information on website as a secondary publisher
 Even if content provided by someone else
 Policies to Consider: Libel Tourism
o With internet, information crosses borders; America has the strictest protections on speech

Constitutional Protection: the First Amendment protects public discourse, particularly criticisms of government.
 In order to protect, some false speech, despite no value, will be covered as a necessity
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  Have to balance free speech v. a person’s right to recover from harm
 Two steps to determine the level of Constitutional protection
o Step 1: what kind of plaintiff?
 Public official (anyone elected) or public figure?
 Public figure can be universal (i.e. Michael Jackson)
 Or limited: only as related to a particular controversy (can inject yourself or be involuntarily injected)
 Private plaintiffs are more vulnerable, need more protection
 Policy: public officials/figures should be treated differently because often inject themselves & they can make
statements to deduct – have a soapbox
o Step 2: is the issue one of public concern?
 Public concern: determined by content, form, context – very flexible, can go beyond “news”
 Issues of private concern = no first amendment privilege

Public Official/Figure || Public Concern

 NYT TEST: Actual Malice: D acted with knowledge that it was false or acted with reckless disregard as to whether or not it was false
o What is reckless disregard? It is more than just negligence.
 Evidence that D entertained (in fact) serious doubts as to the truth of his publication and published it anyway
(can be shown through circumstantial evidence and is subjective)
 Acts contrary to professional standards may be evidence of this
 Ex. inference that you did not look at this information because you did not want to know the truth (ex. of
entertaining serious doubts)
 We are protecting mistakes, not intentional false statements
 Burden is on P to prove falsity and actual malice through “clear and convincing evidence” (truth presumed)
 Standard of review: de novo (looking at it from scratch) because it’s a Constitutional issue
 Standards are much higher to recover (because we want to protect public discourse)

Private Figure || Public Concern

 P must prove the statement was made negligently & it is false (we want robust discussion)!
 P must show actual damages (not the same as special damages, damages not presumed)
 To get punitive damages, must show:
o Actual Malice (NYT TEST) AND Common Law Malice – done with intent to harm

Private Figure || Private Concern

 Statement was defamatory (falsity presumed)
o Extrinsic evidence can be introduced if not defamatory on its face
 Statement was published (communicated to at least one other person)
 Statement was about or concerned the plaintiff
 Damages are presumed

Public/Public Private/Public Private/Private

Burden of Proof of P + actual malice Plaintiff Falsity is presumed, D
Falsity has to prove truth
Degree of Fault Actual malice Negligence No fault required (but
usually N)
Punitive Damages Allowed Allowed if P proves
actual malice

 Fact v. Opinion
o Opinion is not constitutionally protected because can’t be proven false
o Look at statement, find factual assertion by asking “is this falsifiable?”
 Was the opinion predicated on an assertion of fact?
o Consider context, the language itself, hyperbole
o Would a reasonable person reading this interpret it as hyperbole/satire?

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Affirmative Defenses
 Substantial Truth (assertions were true); P was libel-proof (already had terrible reputation)
 Absolute Immunity
o Court proceedings, legislative proceedings
 Includes: judges, attorneys, jury, witnesses, etc.
 But, only applies to court proceedings, not media statements
o High level Officials (executive in state and fed)
 Qualified Privilege
o Statements fairly made in the context of some public or private duty
 Person receiving the information has an interest in knowing the information & you have the duty to tell (common
example: employer references)
 Requirements: good motive, reasonable behavior, made in interest of that party or third party
 Lost when you fail to have a honest/objectively reasonable belief in statement’s truth or disclose information to
more people than necessary
o Fair reporting: reports may cite/recite from official documents and proceedings
 Requires that reporting is “neutral” (accurately & disinterestedly republished) – op eds not even privileged
 Opinions: (fair comment – opinions based on true facts)
o Matter of public concern
o True opinion of speaker
o Not solely made to harm

Remedies for Defamation

Damages
 If plaintiff has little/no reputation to harm, damages probably low
 If it didn’t reach many people, damages probably low
 Even if damages are presumed, still bring them up when it is time to decide damages
 Can recover for financial harm caused by damage to reputation such as loss of job or business
Incremental Harm (accepted by some jurisdictions): Because the true things were so bad, false statements didn’t add anything

Privacy
Definition: right of a private individual to be left alone
 Consider: policy implications, especially on the media, due to the threat of defamation or invasion of privacy law suit
Claims
 Intrusion into seclusion (peeping tom)
o Intrusion into a private place, conversation, or matter
 P must have an objectively reasonable expectation of seclusion or solitude in the place, conversation, or data
source.
 Reasonable expectations will vary with respect to identity of the intruder and the nature of the intrusion
o In a manner highly offensive to a reasonable person
 False Light: saying something about another that makes them falsely look bad (can pick up things not covered by defamation)
o Publication is about the plaintiff
o False facts that put plaintiff in a false light
o Highly offensive to a reasonable person
o NOTE: if public official or public concern, P must prove actual malice
 Public Disclosure of Private Facts: saying a secret about someone, like they used to be a hooker.
o Publication of private facts (not generally known)
o Highly offensive to reasonable person
o Absence of Legitimate Public concern (newsworthiness or public interest)
 Newsworthiness is very vague especially now in the realm of reality TV
 First amendment issues here
 Not a viable claim anymore for the most part
 Misappropriation of Another’s Name or Likeness (plaintiff seeking damages for emotional harm)
o Defendant used plaintiff’s name or likeness
o Defendant sought to take advantage of plaintiff’s reputation, prestige, or social standing attached to the plaintiff’s name,
likeness, or identity
o The use of the plaintiff’s name or likeness was for the defendant’s own purposes or benefit, commercially or otherwise
o Damage was caused to the plaintiff by the defendant’s use
 Commercial appropriation (economic loss, e.g. unauthorized use of celebrity’s image)
o Same, but it’s an economic loss being sought (because plaintiff’s name/likeness has value/commercial standing)

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 o Regardless of whether it is commercial or noncommercial, if it is a matter of public concern (ex. crimes – always),
then it is privileged under the first amendment
 Breach of Confidence: 1) information is confidential 2) relationship of trust to expect confidence
o Legitimate expectation of confidence is breached? You can sue.

Affirmative Defenses
 If a publication is involved, D will raise first amendment analysis
 If matter is of public concern, first amendment privilege may apply

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