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Torts I

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 CHECKLIST TO TORTS I
I. INTENTIONAL TORTS
A. Intent
B. Intentional Torts:
1. Assault
2. Battery
3. False Imprisonment
4. Intentional Infliction Of Emotional Distress
5. Trespass To Land
6. Trespass To Chattel
7. Conversion
C. Defenses: (Crazy Silly Double Dealing Dirty Dog Leave Right Now Never Return Ever)
1. Consent
2. Self Defense
3. Defense Of Others
4. Defense Of Property
5. Discipline
6. Detention For Investigation
7. Legal Authority
8. Reentry Of Land Wrongfully Withheld
9. Necessity (Public)
10. Necessity (Private)
11. Recapture Of Chattel Wrongfully Withheld
12. Entry To Abate A Nuisance
II. NEGLIGENCE
A. Prima Facie Case:
1. Duty
a. General
b. Special - V-GOLD
2. Breach
a. Direct/Circumstantial
b. Res Ipsa Loquitur
3. Causation
a. Actual
b. Proximate
4. Damages
a. General
b. Special
c. Punitive
d. Loss Of Consortium
e. Avoidable Consequence Rule
f. Collateral Source Rule
g. Multiple Defendant Issues
h. Negligent Infliction Of Emotional Distress
i. Prenatal Injuries
5. Defenses
a. Contributory
b. Comparative
c. Last Clear Chance
d. Assumption Of Risk

Fleming’s Fundamentals Of Law (© 2004/2005) Torts I Page 1

 I. INTENTIONAL TORTS AND DEFENSES
A. Intent:
1. Defined:
a. Conscious desire that result will occur or
b. Knowledge that result will occur or
c. Knowledge that result is substantially certain to occur.
2. Defendant's conduct manifested through a volitional act.
3. Insane people generally held liable for their torts as a matter of public policy.
a. A child may or may not be held liable depending upon his maturity, experience
and training.
4. Transferred intent: D's wrongful intent is transferred from the intended victim to actual
victim or from the intended tort to the committed tort.
a. Must have two objects to apply
b. Originally applied to five intentional torts (Assault, Battery, False Imprisonment,
Trespass to Land and Chattels)
c. Modernly limited to Assault, Battery and False Imprisonment
5. Testable fact patterns:
a. Defendant intends all results.
b. Discuss defendant's intent. If lacking, proceed to negligence.
c. Defendant acts causing two results, intentional and negligent.
B. Intentional Torts:
1. Assault: The intentional placing of another in reasonable apprehension of an imminent
harmful or offensive touching without consent or privilege.

Elements:  Intentional
 Placing Of Another In Reasonable Apprehension
 Of An Imminent Harmful Or Offensive Touching
 Without Consent Or Privilege
a. Words alone are not sufficient unless the defendant knows of plaintiff's special
susceptibilities.
b. Conditional threat may negate apprehension.
c. Beware of emotional distress.
d. P must have awareness - unlike battery.
e. Reasonable person test
1) Fear not required – the plaintiff need only be placed in apprehension of
an actual touching; she need not be frightened
a) It is immaterial that a reasonable person would not have been
placed in apprehension by defendant’s act. Actual apprehension
is the test [Rest. 2d §27]
f. Practical jokes sufficient
g. Threats of future harm are insufficient.
h. D must have an apparent present ability to cause the touching
2. Battery: The intentional harmful or offensive touching of another without consent or

Fleming’s Fundamentals Of Law (© 2004/2005) Torts I Page 2

 privilege.
Elements:  Intentional
 Harmful Or Offensive Touching Of Another
 Without Consent Or Privilege

a. The most trivial touching will suffice.

b. Instrumentality will suffice.
c. Beware of trespass to chattel where P's clothes are touched.
d. Awareness not necessary for this tort.
e. Beware of assault.

3. False imprisonment: The intentional physical or psychological confinement of another

within fixed boundaries, for any period of time, without consent or privilege.

Elements:  Intentional
 Physical Or Psychological Confinement Of Another
 Within Fixed Boundaries
 For Any Period Of Time
 Without Consent Or Privilege

a. Words alone may be sufficient act - legal authority.

b. Time period immaterial
c. P must have no reasonable means of egress for confinement to exist.
1) P under no duty to seek out an unreasonable means of escape.

d. Threats of future confinement are not sufficient.

e. Awareness: Two theories:
1) P must be aware of the confinement, or
2) If P is not aware, he must be damaged to recover.

4. Intentional infliction of emotional distress: Conduct of an extreme and outrageous

nature which is calculated to cause and which does cause severe emotional distress.

Elements:  Conduct Of An Extreme And Outrageous Nature

 Which Is Calculated To Cause
 And Which Does Cause
 Severe Emotional Distress

a. Outrageous conduct is required - beware of common carriers and public utilities.

b. P sensitivities must be weighed.
1) Is defendant aware of P's sensitivities?
c. If P claims IIED from seeing D batter a third person, D must have knowledge of
P’s presence to satisfy the intent element of the tort.
d. Modernly, demonstrable injuries need not be shown.
e. Transferred intent does not apply!

5. Trespass to land: The intentional entry upon the land in possession of another without
consent or privilege.
Elements:  Intentional
 Entry Upon Land
 In Possession Of Another
 Without Consent Or Privilege

Fleming’s Fundamentals Of Law (© 2004/2005) Torts I Page 3

 a. Sufficient that D intends to enter another's land.
1) R2 158: "One is subject to liability to another for trespass, irrespective of
whether he thereby causes harm to any legally protected interest of the other,
if he intentionally
a) enters the land in the possession of the other or causes a thing or
a third person to do so or
b) remains on the land or
c) fails to remove from land a thing which he is under a duty to move."

2) Trespass consists of intrusions upon, beneath, and above the surface of the
earth.

b. D mistaken belief that he owns the land or has owner's consent is no defense.

c. P must have actual possession or right to immediate possession.

1) Beware of leasehold as the lessee has actual possession.

d. Beware of negligent trespass and requirement of damages

1) R2 165: "One who recklessly or negligently, or as a result of an
abnormally dangerous activity, enters land in the possession of another or
causes a thing or third person so to enter is subject to liability for trespass."

e. Accidental intrusions which are unintentional and non-negligent result in no liability.

6. Trespass to chattel: The intentional interference with the chattel in possession of another
without consent or privilege.
Elements:  Intentional
 Interference With Chattel
 In Possession Of Another
 Without Consent Or Privilege
a. D intends to deal with chattel of another in a manner inconsistent with P's rights.
b. Trespass includes dispossession:
1) Taking of chattel without consent
2) Obtaining possession by fraud
3) Destroying the chattel
4) Barring P's access to chattel
5) Interfering with Plaintiff's possession of leased/rented chattel

c. Intermeddling - Damages must be shown.

d. Remedies:
1) Diminution in value or cost of repair and/or
2) Reasonable rental value

7. Conversion: The intentional exercise of wrongful dominion and control over the chattel
of another without consent or privilege.
Elements:  Intentional
 Exercise Of Wrongful Dominion And Control
 Over The Chattel Of Another
 Without Consent Or Privilege
a. Look for more than a mere interference - trespass to chattel.

Fleming’s Fundamentals Of Law (© 2004/2005) Torts I Page 4

 b. May have possible multiple conversions of same object
c. If defendant buys or receives stolen goods, liability will result as an innocent
converter, even if done in good faith.
d. Remedies:
1) Nature of judgment amounts to a forced sale - defendant required to pay
full market value of chattel.
2) Replevin
3) Detinue

C. Defenses:

Mnemonic: (Crazy Silly Double Dealing Dirty Dog Leave Right Now Never Return Ever)

Consent
Self Defense
Defense Of Others
Defense Of Property
Discipline
Detention For Investigation
Legal Authority
Reentry Of Land Wrongfully Withheld
Necessity (Public)
Necessity (Private)
Recapture Of Chattel Wrongfully Withheld
Entry To Abate A Nuisance

*1. Consent
a. Actual, apparent, and implied by law (save a life)
b. Not effective under following circumstances:
1) Scope of consent exceeded
2) Consent obtained by duress/fraud/mistake (if mistake was caused by
defendant or is defendant was aware of it)
3) Consent to illegal act: (mutual combat or illegal intercourse)
a) Majority rule: No defense in civil action if act involves breach of peace.
b) Minority rule: Defense to civil action unless force used has exceeded
the consent.

*2. Self defense

a. Reasonable belief of imminent danger and reasonable force used to repel attack.
1) No duty to retreat unless P acted without intent or P had mistaken D's
identity.

b. Deadly force privileged where actor believes he is in danger of death/serious bodily

harm.
1) Duty to retreat: (split)
a) Majority: No duty to retreat unless P's conduct unintentional.
b) Minority: Must retreat unless retreat would be dangerous, D is in
his home, or D is attempting a valid arrest.

c. No privilege if danger has passed, or if force is excessive (beware of battery).

*3. Defense of others

a. Reasonable force to protect any third person from harm:
1) Majority: Step into the shoes of victim.

Fleming’s Fundamentals Of Law (© 2004/2005) Torts I Page 5

 2) Minority: Reasonable mistake protected.

b. Does not apply to officious intermeddler

4. Defense of property
a. Non deadly force allowed where the intrusion by the other party is not privileged,
where force necessary to terminate the intrusion, and demand is made (unless futile).
b. Deadly force only where life in danger
c. No privilege to expel an intruder if to do so would expose him to greater danger.

5. Discipline
a. Reasonable force by one in loco parentis with the plaintiff

*6. Detention for investigation

a. Reasonable grounds
b. Reasonable amount of time - (thirty minutes?)
c. Reasonable force
d. Reasonable investigation
e. Majority will permit a reasonable mistake

7. Legal authority
a. Felony
1) If police officer has reasonable grounds to believe that a felony has been
committed and that the person he arrests has committed it, even if no
felony has been committed

2) Private citizen privileged only if felony has in fact been committed or a

reasonable belief exists that the person he arrests committed it, only if a
felony has in fact been committed

b. Misdemeanor
1) A police officer is privileged to arrest if a breach of peace exists, and that
the defendant committed the offense in the party's presence

2) A private person is privileged to arrest if a breach of peace exists, a

misdemeanor was actually committed and the defendant committed the
offense, in the party's presence

c. Force must be reasonable. Deadly force is allowed if the person poses an

imminent threat to society or the officer.

8. Reentry of land wrongfully withheld

a. Majority : No privilege exists to use any force.
b. Minority: Allows reasonable force to regain possession.

*9. Necessity (Public)

a. Complete defense (no liability for damages)
b. If P resists, D may use deadly force.

*10. Necessity (Private)

a. Incomplete defense (D liable for damages)
b. Entry must be reasonable.

11. Recapture of chattel wrongfully withheld

Fleming’s Fundamentals Of Law (© 2004/2005) Torts I Page 6

 a. Reasonable force permitted to recapture as long as actor is entitled to chattel,
demand made (unless futile), fresh pursuit.
1) No mistake, however reasonable, is permitted

b. One may enter another's land to recapture chattel as long as demand made, entry
made in reasonable manner, reasonable force. Complete defense
12. Entry to abate a nuisance
a. Defendant is completely privileged to invade the land or chattels of another for
the purpose of abating a private nuisance created or maintained on the land or
chattels of the other, subject to the following conditions:
1) Defendant must be the owner or possessor (e.g., tenant) of land or chattels
injuriously affected by the nuisance.

2) Defendant must first make a demand that the nuisance be abated, unless it
reasonably appears that such demand is impractical or useless.

3) Defendant must enter at a reasonable time and use only reasonable force to
effect the abatement.

*Denotes testable defenses

II. NEGLIGENCE
A. Defendant may be liable to plaintiff for Negligence if it can be determined that the defendant
owed a duty of care to the plaintiff, that defendant breached that duty, and that the plaintiff
suffered damages which were actually and proximately caused by defendant's breach.

1. Duty of due care: The duty is created when defendant does an act which creates a
reasonably foreseeable risk of harm. If there is such a foreseeable risk of harm, did
defendant act reasonably under the circumstances?
a. General duty: Standard of care based on the reasonable person test under the
same or similar circumstances.
1) Custom is not considered a standard of care but failure to comply with a
widely accepted local custom may be evidence of negligence.

2) Adults with disabilities are held to the reasonable person test with their
disability taken into consideration (physical). No allowance is made for
mental disabilities except in the case of retarded adults who will be held to
act reasonably in light of their diminished mental capacity unless they are
engaged in dangerous or adult activities.

3) Children are judged by age, intelligence, and experience (beware of adult

activity - Adult standard).
a) Minority rule:
(1) 0-7 conclusive presumption against negligence
(2) 7-14 rebuttable presumption
(3) 14-over held to an adult standard

4) Experts measured by standard in the trade (doctors held to a national

standard unless general practitioners).

5) Common carriers held to higher standard.

Fleming’s Fundamentals Of Law (© 2004/2005) Torts I Page 7

 6) To whom is the duty of care owed: (PALSGRAF)
a) CARDOZO: Foreseeable P in a foreseeable zone of danger
b) ANDREWS: General duty owed to everyone

b. Special duties: (Testable)

Mnemonic: V-GOLD
5 Special Duties: Violation Of Statute
Guest Statute
Omission To Act
Landowner-Occupier
Duties Owed By Lessors Of Land

1) Violation of statute: ICI+ (criminal statute - civil liability)

a) I: Intent of legislature
b) C: Class of persons to be protected
c) I: Type of injury suffered
d) +: Evidentiary effect:
(1) Majority: Negligence per se
(2) Minority: Inference of negligence
(3) California: Presumption of negligence
Caveat: Violation of statute can be used to prove contributory
negligence on the part of the Plaintiff when the Plaintiff
violates the statute.
2) Guest statute:
a) If P is a guest then he must show gross negligence
(recklessness) on the part of the driver in order to recover.
b) Rationale: Prevent insurance collusion

3) Omission to act: (if no special duty found then no duty owed)

a) No duty to go to the aid of another in an emergency unless:
(1) Injured by instrumentality under D's control
(2) Special relationship between parties
(3) Statutory duty to act
b) No duty to control acts of third persons unless one had the actual
ability and authority to do so (negligent supervision/entrustment)
c) No liability for failure to perform a gratuitous promise (nonfeasance).
(1) However, even where the promise is gratuitous, a defendant-
promisor who enters upon its performance in any manner must
perform with reasonable care. Failure to do so is misfeasance,
and is a sufficient basis for tort liability.
(2) Modernly there is a duty to perform a promise if physical harm
or property damage results from reliance
(3) Remember that detrimental reliance, a contractual concept, can
provide a substitute for consideration and the promise is no
longer gratuitous
d) Gratuitous undertaking: No duty, however, if undertaken can not
leave individual in a worse situation

Fleming’s Fundamentals Of Law (© 2004/2005) Torts I Page 8

 (1) Statutory exception for physicians

4) Landowner-occupier rules:
a) Duties owed to persons outside land:
(1) No duty as to natural conditions.
(a) Urban area exception
(b) Minority: Reasonable care required
(2) No duty as to artificial conditions except:
(a) If the artificial condition abuts adjacent land
i. Duty to inspect and maintain such
structures in a reasonably safe condition
(b) Excavations adjoining a public road require a duty to
protect highway users from straying and falling in
b) Duties owed to persons coming onto the land:
(1) Trespasser:
(a) Undiscovered: No duty
(b) Discovered - Known/Anticipated:
i. D must use due care in affirmative acts if
he knows that trespasser is present.
ii. If D knows that trespassers are frequently on his
land, he must post warnings of known dangers.
(c) Infant: Attractive Nuisance Doctrine
Mnemonic: A Professor You Understand

Elements:  Artificial Condition Creating An

Unreasonable Risk Of Harm
 Possessor Of Land Knew Or Should
Have Known That Children Are Likely
To Trespass
 Children Unable To Recognize Danger
Because Of Their Youth

 Utility Of Maintaining The Condition vs.

The Burden Of Eliminating The Risk
Note: Child need not have been attracted
onto the land by the dangerous
condition.
(2) Licensee:
(a) Those entering with permission, but not for the
purpose for which the property is maintained (includes
social guests, fire-fighters, and police officers if not
acting in the scope of their official duties)
i. Ordinary care required and D must warn
of known dangers or make safe.

Fleming’s Fundamentals Of Law (© 2004/2005) Torts I Page 9

 (3) Invitee:
(a) Those entering with permission for the purpose for
which the land is maintained.
i. Public invitees enter land for the purpose for
which the land was held open to the public
(including public employees as long as they are
acting in the scope of their official duties).
ii. Business invitees enter land primarily for
business dealings with occupier.

(b) Ordinary care and D must make reasonable

inspection for dangerous conditions.

(c) Must warn of all dangers of which D knows or

could have discovered by a reasonable inspection
and make safe for protection of invitees who
enter.

Caveat: Beware of status changing (Highly testable)

c) ROWLAND v. CHRISTIAN: Liability determined by general

duty principles (minority rule).

5) Duties owed by lessors of land:

a) Common law landlord owes no duty to person coming onto land
with the consent of the lessee.
(1) Exceptions:
(a) Latent defects known to lessor
i. Landlords may be sued only for general
negligence if a tenant can prove the landlord knew
or should have known of dangerous conditions
within rental property.

(b) Duty to warn or repair conditions dangerous to

persons outside the premises
(c) Same duty as invitees if land leased for
admission to public
(d) Areas retained in lessor's control
i. Duty to safeguard against crime

b) If lessor covenants to repair, must do so with due care (beware of

third party beneficiary action).

c) SARGENT v. ROSS: Non-liability discarded as a general duty

owed.

2. Breach of duty:
a. Direct/circumstantial:
1) Did Defendant breach a duty through an act/omission exposing others to
an unreasonable risk of harm?
a) Plaintiff must have proof of what actually happened and
b) Must show that the defendant acted unreasonably (utility v. risk)

Fleming’s Fundamentals Of Law (© 2004/2005) Torts I Page 10

 b. Res Ipsa Loquitur (the thing speaks for itself): (Testable)

Elements:  Accident Does Not Normally Occur In The Absence Of

Negligence
 Source Of Negligence Must Be Within The Scope
Of Duty Owed By Defendant To Plaintiff
(Instrumentality which caused P's injury must have
been in D's exclusive control at the time of the injury -
Eliminated under the Restatement Second)
 P Must Not Have Contributed To His Own Injury

1) Effect of establishing Res Ipsa:

a) Majority: Inference of negligence
b) Minority: Rebuttable presumption
c) Minority: Disappearing presumption

3. Causation:
a. Actual cause: (Cause In Fact)
1) But for/sine qua non test: (defendant's act). Take away the defendant’s
act; if the injury still occurs then defendant’s act is not the sine qua non
of the injury.
a) Concurrent:
(1) Use when separate negligent acts concur and P would
not have been injured but for the concurrence (both D's
are liable but a concurrent cause may be non-tortious
[act of God etc.])

b) Joint tortfeasors:
(1) Several defendants jointly engaged in negligent conduct
(a) Each defendant is liable even though only one
actually inflicted injury.

c) Successive tortfeasors:
(1) Defendants acting entirely independent but whose acts
have caused successive impacts to plaintiff resulting in a
single indivisible injury to P.
(a) Tortfeasors must attempt to disprove potential
responsibility.

2) Substantial factor test:

a) Use if plaintiff sustains injury as a result of the negligent conduct of
both A and B. Even if the conduct of either defendant is not the sine qua
non of the injury. If the conduct of either defendant alone would have
been sufficient to cause the injury, both are a substantial factor.

b) Alternative liability: (insufficient facts as to which of several D's caused

P's injury but if either defendant’s act could have caused the injury, both
defendants could not have caused the injury, and it is impossible to prove
which defendant’s act caused the injury
(1) Shifts burden of proof to each D to show his negligence
was not the actual cause or the defendants are jointly and
severally liable. (SUMMERS v. TICE).

Fleming’s Fundamentals Of Law (© 2004/2005) Torts I Page 11

 (2) Only one defendant causes harm.

b. Proximate cause: "Who should bear the risk of loss" with a defendant who has been
negligent and who has actually caused damage to the plaintiff, is there any policy
reason why this defendant should be relieved of liability for this damage?”
1) Direct causation (domino theory) is where the acts of the defendant
have caused the damage to the plaintiff without an intervening cause
a) The majority rule holds a defendant liable only for the
foreseeable results of his negligent act (Wagon Mound I) while
a minority holds a defendant liable for all directly caused results
(Polemis)
(1) A major exception to this majority rule holds the
defendant liable for all results, foreseeable and
unforeseeable, if the result stems from an inherent frailty
in the plaintiff (the Thin Skulled Plaintiff Rule)

2) Indirect causation (the damage in question is caused by the intervening

act of a third person, an animal or an act of God)
a) Force coming into operation after D's negligence
b) Acts of P/omissions to act should not be analyzed as intervening forces
except in the case of plaintiff committing suicide as a result of his
injuries. In this case, the cause of death is the unforeseeable intervening
act of the plaintiff himself

3) Remember that some items of a plaintiff’s damage may be directly

caused and some indirectly caused. Analyze each item of damage
separately if this is the case

4) Two types of intervening causes:

a) Dependent: Normal response to stimulus created by D's act
(1) Foreseeable: 4 types:
(a) Rescue forces: D liable for aggravated injuries to P
through rescuers' negligence. (make sure it is not
wanton)

(b) Reaction forces: D's negligence causes a foreseeable

reaction.

(c) Checking forces: Negligent treatment of P.(watch for

malicious treatment and remember, negligence is
foreseeable)

(d) Escape forces: Infliction or aggravation of injuries

through escape efforts or attempts to avoid or mitigate
harm.

(2) Unforeseeable: Look to unusual or abnormal response to D's

negligence (plaintiff’s suicide for example).

b) Independent: Abnormal response to stimulus created by D's

negligence. (An act of God, an animal or a third person that is
not caused by defendant’s negligence, but acts on the stage
created by the defendant’s negligence)
(1) Foreseeable: The fact that the intervening force was not

Fleming’s Fundamentals Of Law (© 2004/2005) Torts I Page 12

 reasonably foreseeable does not excuse D from liability as
long as result was foreseeable:
(a) Acts of God
(b) Animals
(c) Third person's negligent conduct

(2) Unforeseeable: Superseding cause

(a) Unforeseeable criminal act. Criminal acts are not
unforeseeable if the risk of criminal conduct was
one of the risks creating the duty of due care
(negligent repair of burglar alarm)

(b) Unforeseeable acts of third persons

i. Abnormal rescue

(c) Exception - foreseeable results doctrine

(GIBSON v. GARCIA)

 MENTAL/WRITING CHECKLIST
Try to follow steps 1 through 5 when analyzing D's liability to the plaintiff:

1. Are the facts dealing with direct causation or indirect causation?

2. If Direct, determine whether the result was unforeseeable and, if so,

whether the Thin Skulled Plaintiff is applicable.

3. If Indirect, then an intervening act has come into play, is it

dependent or independent?

4. If Dependent, then normally liability unless unforeseeable results.

5. If Independent, then were the results foreseeable (argue for liability)

or unforeseeable (argue no liability but beware of foreseeable results
doctrine).

 By all means incorporate the facts with the above analysis. D will always argue
that liability should be cut off while P will argue for extended liability. Thus,
make sure you argue both sides!

 You must incorporate your analysis of Palsgraf from duty in with your
causation analysis. Remember, Cardozo views liability in the form of duty (D
argument) while Andrews views it as one of causation (P argument).
4. Damages:
a. General damages: Past, present, future pain and suffering

b. Special damages: Past, present, future economic losses, medical bills, loss of
wages/profits
1) Pure economic injury not protectible by negligence cause of action. A

Fleming’s Fundamentals Of Law (© 2004/2005) Torts I Page 13

 pure economic loss is a loss that is not connected with physical injury to
property or person.

c. Punitive damages: No recovery in negligence action.

d. Loss of consortium:
1) Majority requires complete loss of companionship and intercourse
between husband and wife for a definite period of time.
2) Minority extends recovery to parent/child relationships.

e. Avoidable consequence rule: P must act reasonably to mitigate damages.

f. Collateral sources rule: D may not show at trial that P received financial aid from
other sources to help meet any expenses caused by D's negligence.

g. Multiple defendant issues:

1) Joint and several liability: Where two or more negligent persons combine
to inflict an indivisible injury on P (even if they act independently of one
another), or if two or more persons act in concert to inflict a divisible or
indivisible injury on P, each is liable to P for the entire damage incurred
a) There are three ways in which more than one party can become
joint tortfeasors:
(1) If two or more independent tortfeasors’ conduct joins
together so as to concurrently cause an indivisible injury
to the plaintiff
(2) If two or more independent tortfeasors inflict successive
impacts to the body of plaintiff so as to cause an
indivisible injury
(3) If two or more tortfeasors engage in a concert of action
(an agreement, express or implied to commit a tort) or
jointly engage in tortious conduct, and a divisible or
indivisible injury is caused to the plaintiff

b) Their liability will be joint and several which means that the
plaintiff may elect to sue both jointly, or alternatively, each
tortfeasor may be sued severally and held responsible for all the
damages caused. In either case, the general rule for joint and
several liability is that each tortfeasor is liable for the full amount
of harm, and one defendant cannot compel the plaintiff to join the
other(s) as parties to the action

2) Contributions:
a) Each joint tortfeasor is liable to his other joint tortfeasors for his
proportionate share and if one tortfeasor pays the whole judgment he has
a cause of action for contribution against his fellow joint tortfeasors.
Majority restricts to negligent tortfeasors.

3) Indemnity:
a) One secondarily liable is entitled to indemnification against defendant
primarily responsible.

4) Satisfaction:
a) Recovery of full payment (by settlement or judgment) from one joint
tortfeasor prevents further recovery from any other joint tortfeasor i.e.,

Fleming’s Fundamentals Of Law (© 2004/2005) Torts I Page 14

 when payment of judgment in full is made by the judgment debtor, the
plaintiff is barred from a further action against another who is liable for
the same damages.

5) Release:
a) Common law held that a release against one joint tortfeasor was a release
against all. Modern law contra
(1) Restatement of Torts 2d §885(1) provides: "A valid
release by one tortfeasor from liability for harm, given
by the injured person, does not discharge others liable
for the same harm unless it is agreed that it will
discharge them."

However, subsection (3) states "A payment by any person made

in compensation of a claim for a harm for which others are
liable as tortfeasors diminishes the claim against the tortfeasors,
at least to the extent of the payment made, whether of not the
person making the payment is liable to the injured persons and
whether or not it is so agreed at the time of payment or the
payment is made before or after judgment."

h. Negligent infliction of emotional distress:

1) Duty owed not to subject others to a foreseeable risk of physical injury
(impact/threat) that might foreseeably result in emotional distress
a) Split as to impact v. threat. All jurisdictions impose liability for
emotional distress if there is a contemporaneous physical injury (the
so-called “impact rule.” A majority of jurisdictions impose liability
for emotional distress if the plaintiff is in the “zone of danger”.
b) Generally, physical manifestation of the emotional injuries
required
(1) Exceptions:
(a) Erroneous telegrams
(b) Mishandled corpses (family members/pets)

2) Bystander recovery - jurisdictional split regarding negligent infliction of mental

distress:
a) Majority rule: A person in the zone of danger is not a bystander
and can recover for emotional distress at seeing another person
in the zone of danger injured

b) Minority rule including CA: Permits a bystander to recover for

seeing another person injured if the plaintiff meets the
“proximity test” of THING v. LA CHUSA
(1) Limitation: Plaintiff’s rights may be derivative only.
Even where recovery by a third person (parent) is
permitted, the right of action is apparently derivative: i.e.,
it is dependent upon the imperiled person’s (child’s)
right to recover. Thus, if defendant was found not liable
for the harm to the child (e.g., because of the child’s
contributory negligence), the parent would not be
permitted to recover for emotional distress in witnessing
the child’s injury.

c) Small minority of states: Impact rule is still required (modern trend

Fleming’s Fundamentals Of Law (© 2004/2005) Torts I Page 15

 contra) Impact is very broad; argue accordingly.

d) Michigan rule (1970): Permit recovery as long as:

(1) Distress flows from negligent act
(2) Physical manifestations
(3) No zone of danger required

e) New York/Pennsylvania: No impact rule. Differs from Michigan in that

P must be in the zone of danger.

f) California/DILLON v. LEGG (1968): (minority view) (facts will

indicate family member involved) Recovery permitted if:
(1) Close relationship between parties
(2) Sensory and contemporaneous observance: Requires some
shock and time important but not controlling
(3) Physical proximity

Note: An evaluation of these factors will indicate the degree of

foreseeability, and foreseeability, in turn, will determine duty.
(see THING v. LA CHUSA)

g) MOLIEN v. KAISER (1980): Broaden scope of foreseeability without

DILLON requirements - Husband "direct victim".

h) OCHOA v. SUPERIOR COURT (1985): Court held the "sudden

occurrence" requirement is an unwarranted restriction on the DILLON
guidelines. When there is observation of the defendant's conduct and the
child's injury and contemporaneous awareness that the defendant's
conduct or lack thereof is causing harm to the child, recovery is
permitted.

i) NEWTON v. KAISER HOSPITAL (1986): State Appeal Court

permitted recovery to the parents of a child injured during childbirth. A
duty was found through the contractual relationship between the parents
and the hospital. It should be noted that the father was not present and
the mother was unconscious.

j) THING v. LA CHUSA (1989): Limitation on DILLON v. LEGG.

In 1989, the California Supreme Court laid down new requirements for
recovery of a negligent infliction of emotional distress claim. "We
conclude that a plaintiff may recover damages for emotional distress
caused by observing the negligently inflicted injury of a third person if,
but only if, said plaintiff:
(1) Is closely related to the injury victim
(2) Is present at the scene of the injury producing event at the time it
occurs and is then aware that it is causing injury to the victim;
and
(3) As a result suffers serious emotional distress: A reaction
beyond that which would be anticipated in a disinterested
witness and which is not an abnormal response to the
circumstances."
k) GOLSTEIN v. SUPERIOR COURT (1990): A state appeal court

Fleming’s Fundamentals Of Law (© 2004/2005) Torts I Page 16

 ruled that the parents of young boy who was accidentally given a lethal
dose of radiation during cancer treatments could not recover damages for
emotional distress because they could not see the invisible radiation
beams killing their son. The court stated, "we interpret Thing's policy
statement as a requirement that . . . plaintiffs experience a
contemporaneous sensory awareness of the causal connection between
the negligent conduct and the resulting injury.
Exam Approach: Total jurisdictional approach. It will be up to the jurisdictions if liability
will be found. Argue accordingly depending upon facts, but beware of a
DILLON v. LEGG/THING v. LA CHUSA problem. Argue zone of
danger where appropriate. If Husband and Wife, look for loss of
consortium.
Note: Spot the issue and discuss as many jurisdictions as time permits. No
need to cite the name of the states, just the rationale. Above all, argue the
facts.

i. Prenatal injuries: Some courts impose a duty toward any fetus that was viable at
the time of the injury. Some allow even before fetus viable.
1) Wrongful birth - split of jurisdictions as to recovery
a) Majority permits recovery of actual losses only, i.e., medicals

5. Defenses:
a. Contributory negligence: Conduct on the part of the P which is a contributing
cause to his/her own injury and falls below the standard of care to which he/she is
required to conform for his/her own protection.

Elements:  Conduct On The Part Of The Plaintiff

 Which Is A Contributing Cause To His/Her Own Injury
 And Falls Below The Standard Of Care
 To Which He/She Is Required To Conform
 For His/Her Own Protection
1) Objective standard
2) Plaintiff owes a duty to himself.
3) Complete bar to recovery (proceed to comparative)
4) Beware of imputed contributory negligence.
a) The negligence of a third person will be imputed to P if there is a
relationship between P and the negligent third person that makes it
proper to charge P with that person's negligence
(employee/employer, joint venture).

b. Comparative negligence: Compares the negligence of P and D solely in terms of

blameworthiness and apportions the damages accordingly.

Elements:  Compares The Negligence Of Plaintiff And Defendant

 Solely In Terms Of Blameworthiness
 And Apportions The Damages Accordingly

1) Pure system: P will recover some damages no matter how great

negligence (CA.).
2) Partial: P will be denied recovery where his own negligence equals or

Fleming’s Fundamentals Of Law (© 2004/2005) Torts I Page 17

 exceed D's.

3) Abolishes last clear chance, assumption of risk (implied) and contributory

negligence

c. Last clear chance (LCC): P's contributory negligence will not be considered a bar
to his action if D had the last clear chance to avoid the injury.

Elements:  Plaintiff's Contributory Negligence

 Will Not Be Considered A Bar To His Action
 If Defendant Had The Last Clear Chance To Avoid The
Injury

1) Helpless peril cases: If P has placed himself in peril and cannot extricate himself
(contributory negligence) and if D had actual knowledge of P's danger and by
the use of due care could have avoided harm to P, LCC will apply. If D was
under a duty to discover most jurisdictions allow LCC to apply.

2) Inattentive peril cases: Where P could have removed himself through the use of
reasonable care but fails to, LCC will apply if D had actual knowledge of P's
presence.

3) Antecedent lack of preparation cases: (Testable) Modernly, most courts refuse

to apply LCC (failure to inspect brakes) since the D does not have the ability to
avoid the injury.

d. Assumption of the risk: P assumes the risk when he/she has knowledge,
comprehension, appreciation of a danger and voluntarily chooses to encounter it.
Elements:  Plaintiff Assumes The Risk
 Will Be Considered A Bar To His Action
When He/She Has Knowledge, Comprehension,
Appreciation Of A Danger
 And Voluntarily Chooses To Encounter It

1) Subjective standard measured by the reasonable person test.

2) Rescuers do not assume the risk.
3) If objective standard overcomes the subjective standard, P is contributorily
negligent.
a) Example: If a plaintiff unreasonably undertakes to encounter a
specific known risk imposed by a defendant's negligence,
plaintiff's conduct, although he may encounter that risk in a
prudent manner, is a form of contributory negligence.

Fleming’s Fundamentals Of Law (© 2004/2005) Torts I Page 18

 TORTS I
QUESTION #1

Dina, aged sixteen, lives at home with her mother, Mary, in a state where the age of majority is
eighteen. Mary is aware that Dina has recently exhibited a sometimes violent and delusionary nature
diagnosed as schizophrenia, and has attacked persons in the neighborhood. Medication that can
control Dina's behavior has been prescribed, but without Mary's knowledge Dina has stopped
taking it.

A week after Dina stopped taking her medication, she approached a neighbor, Paul, as he
walked along the sidewalk fronting Mary's home. When she was face to face with Paul, Dina,
without provocation, gestured threateningly and screamed, "I know you're out to get me and I'm
going to get you first," and then strode away.

Paul, who had no knowledge of Dina's mental illness, phoned Mary about the incident. Mary
told Paul that "Dina has sometimes made threats to others, but I do not think that she will try to hurt
you and I assure you that this will not happen again." Paul believed Mary's assurances and, for that
reason, did not seek to avoid Dina.

Mary questioned Dina about the incident, scolded her, and asked if Dina was taking her
medication. When Dina said she was, Mary did not pursue the matter.

Two days later, after Dina confronted Paul, Dina saw him raking leaves which had fallen into
the street fronting their adjoining homes. Dina got on her bike and rode it as rapidly as she could
directly at Paul. Although Dina swerved away from Paul at the last moment, Paul reacted by diving
to one side. He struck his head on the curb and suffered a severe concussion and facial injuries.

Paul had sued Dina and Mary, alleging tortious causes of action.

1. Is Paul entitled to recover against Dina for:

a. Assault? Discuss.
b. Battery? Discuss.

2. Is Paul entitled to recover against Mary:

a. On the ground that Mary was negligent as to Paul? Discuss.

Fleming’s Fundamentals Of Law (© 2004/2005) Torts I Page 19

 TORTS I
QUESTION #2

Driver, late for an appointment with his boss, and seeing a green light and no traffic in the
intersection where he was to turn left, failed to give a left turn signal as required by state statute.
Though he was not exceeding the speed limit, he was going too fast for the turn. He skidded across
opposing lanes of traffic, mounted the sidewalk, and struck a fire hydrant. Had it not been for the
hydrant, Driver would undoubtedly have struck Boozer, Pedestrian, Bicyclist, and Bystander.

When Bicyclist saw the dangerous and powerful gush of water spewing from the fire hydrant he
swerved and injured Pedestrian. Boozer was already screaming from injuries inflicted by the
gushing water. Then, before Bicyclist could even get up, Steelworker, high above the street and
straining to get a better view of the situation below, accidentally knocked over his lunch pail which
plummeted downward and knocked Bicyclist unconscious. As if this weren't enough, Thief, who
was just emerging from holding up a nearby bank, saw that Bystander was blocking the most direct
route under the gushing water to his idling getaway car. Therefore, Thief knocked Bystander
unconscious, dived under the gushing water, and sped away.

Discuss fully the theories of liability if any, of Driver as to Boozer, Pedestrian, Bicyclist and
Bystander.

Fleming’s Fundamentals Of Law (© 2004/2005) Torts I Page 20

 TORTS I
QUESTION #3

Abel and Baker were working on a scaffold lawfully erected over a public sidewalk. Abel,
contrary to an express rule of his employer, was not wearing a hard hat.

While trying to park her automobile near one of the supports of the scaffold, Diana maneuvered it
into such a position that she knew there was a risk of knocking the scaffold down if she backed up
without someone to guide her. She appealed for help to Sam, a stranger who was passing by. Sam
just laughed. Angered, Diana proceeded to back her automobile without assistance and knocked a
support out from under the scaffold, causing Abel and Baker to fall.

Abel severely fractured his skull and was taken unconscious to a hospital. If he had been wearing
his hard hat, he would have suffered only a slight concussion with minimal disability.

Baker sustained a fracture of a vertebra, but he was able to walk and felt only slight pain. The
fracture could have been easily diagnosed by x-ray, and a medical doctor of average competence
could have successfully treated it by immobilization. Instead of visiting a physician, Baker worked
the rest of the day. While driving his car home later that day, Baker stopped at an intersection and
his car was struck from the rear by a car driven by Ed. The collision caused only slight damage to
Baker's car, but it was sufficiently severe to aggravate the fracture in Baker's back, resulting in
paralysis.

Diana and Sam settled Baker's claim against them and received general releases from him. Able
sued Diana and Sam. Baker sued Ed. Assume that Diana, Sam and Ed raise all appropriate
defenses.

1. What rights, if any, does Abel have against Diana? Sam? Discuss.

2. What rights, if any, does Baker have against Ed? Discuss.

Fleming’s Fundamentals Of Law (© 2004/2005) Torts I Page 21

 TORTS I
SUGGESTED ISSUE LIST QUESTION #3

I. Rights of Abel v. Diana/Sam:

A. Able v. Diana

1. Battery
a. Did Diana "intend" to knock Abel down?
b. Are other elements of prima facie case present?

2. Negligence
a. Duty
b. Breach
c. Causation
1) Actual
2) Proximate
a) Direct (set stage)
d. Damages
3. Defenses
a. Contributory negligence
b. Comparative negligence
c. Last Clear Chance

B. Abel v. Sam

1. Negligence
a. Duty
1) Special duty?
a) Did Sam owe a special duty to aid Diana?

II. Baker v. Ed:

A. Negligence
1. Duty
2. Breach
3. Causation
a. Actual
1) But for (successive tortfeasors)
b. Proximate
1) Direct (thin skulled plaintiff)
4. Damages
a. Effect of release
1) Are Ed and Diana joint tortfeasors?
5. Defenses
a. Assumption of risk?
b. Avoidable consequence rule

Fleming’s Fundamentals Of Law (© 2004/2005) Torts I Page 22

 TORTS I
QUESTION #4

Ped suffered a broken leg on November 1, 1977 when he was struck by an automobile
negligently driven by Driver. Ped's doctor, Dr. Brown, placed the leg in a cast. Three weeks after the
accident, Ped received a payment of $5,000 from Driver's insurance carrier and Ped signed the
following release:

"I, Ped, hereby release Driver from any and all liability arising out of the injuries received by me
on November 1, 1977."

One month after the accident, Ped returned to the hospital to have the cast removed. At that time
Dr. Brown discovered that the leg had become infected under the cast. Dr. Brown used a full dose
of a new drug in order to counteract the infection.

Ped had a serious reaction to the drug, was hospitalized for ten days, and is still in a greatly
weakened condition. At the time of administering the drug, Dr. Brown did not know that the drug
would be likely to cause such a reaction. However, it was generally known in the medical profession
that drugs of this type had components that would produce such a reaction in about one out of ten
thousand and that a simple skin test, using a small quantity of the drug, would disclose the
possibility of that reaction.

(1) What rights, if any, does Ped have against Dr. Brown for harm resulting from the
drug? Discuss.

(2) What rights, if any, does Ped have against Driver for harm resulting from the drug?
Discuss.

(3) Assuming Ped recovers against Driver for harm resulting from the drug, what rights, if
any, does Driver have against Dr. Brown? Discuss.

Fleming’s Fundamentals Of Law (© 2004/2005) Torts I Page 23

 TORTS I
SUGGESTED MODEL ANSWER

(1) PED v. DR. BROWN

Negligence

Negligence requires a showing that a duty was owed, that the duty was breached, and that the breach
was the actual and proximate cause of damages.

Duty

Ped will argue that Dr. Brown, his treating physician, would be held to the same national standard
of care as all other medical doctors treating patients with leg cast infections under the same or
similar circumstances. It was generally known in the medical profession that drugs of the type used
by Dr. Brown had components that would produce a reaction in one out of 10,000 patients. As
such, Dr. Brown owed a duty of due care to determine any possibility of a drug reaction by
administering a simple skin test to Ped before giving him a full dose of the drug so as not to expose
him to an unreasonable risk of harm.

Breach

When Dr. Brown administered a full dose of the new drug before giving Ped the simple skin test
that would have disclosed the possibility of a reaction, he did not act as a reasonable doctor under
the same or similar circumstances.

Even though the drug was known to produce a reaction in only about one in 10,000 patients, the
utility of administering a full dose before testing would outweigh the preventable risk of a severe
reaction.

Dr. Brown's use of a new drug without sufficient knowledge that it was likely to cause such a
reaction is further evidence of his failure to exercise the degree of skill generally expected of a
physician in the same community.

Therefore, Dr. Brown breached his duty of due care.

Actual Causation - Successive Tortfeasors

Ped's injuries resulted from the negligent conduct of driver (infra) followed by the negligent
conduct of Dr. Brown (supra). Both tortfeasors acted independently. Their combined acts produced
a single harm and caused the 10-day hospitalization and weakened condition. "But for" the separate,
independent, and negligent acts of each defendant, Ped would not have been injured. Therefore, Dr.
Brown and Driver, as tortfeasors, must try to disprove their responsibility for the injury.

Therefore, Dr. Brown is the actual cause of Ped's injuries.

Proximate Causation

Ped will argue that the serious reaction he suffered from the administration of the new drug for
treatment of his leg infection was a direct, foreseeable result of Dr. Brown's failure to test the drug
before giving it.

Therefore, Dr. Brown was the proximate cause of Ped's injuries.

Fleming’s Fundamentals Of Law (© 2004/2005) Torts I Page 24

Damages

Ped suffered physical injuries to the extent that he required ten days of hospitalization and is still in
a greatly weakened condition. He should recover general damages for his pain and suffering and
special damages for his out-of pocket expenses related to the hospitalization.

Dr. Brown is liable for negligence.

(2) PED v. DRIVER

Negligence

Defined supra.

Duty/Breach

The facts stipulate that Ped was struck by an automobile negligently driven by Driver. Thus, duty
and breach have been established.

Actual Causation

As discussed supra.

Proximate Causation

Ped will contend that his broken leg and cast infection which ultimately required hospitalization
were foreseeable results of the automobile accident.

Driver will rebut that Dr. Brown's negligent treatment of Ped's leg infection was an intervening act
that came into play after Driver's negligence and should sever his chain of liability.

However, the medical treatment was a normal response to the injuries created by Driver's negligent
act. Since the treatment arose because of Driver's negligence, it is deemed a normal risk incurred in
hospitalization. As a foreseeable checking force, it will not relieve Driver of liability.

Driver is the proximate cause of Ped's injuries.

Damages

As discussed supra.

Effect of Release

A release is an agreement extinguishing plaintiff's claim against the defendant which requires
mutual assent and consideration.

Three weeks after the accident, Ped received a payment of $5,000 from Driver's insurance carrier.
Ped signed a release which stated, "I hereby release Driver from all liability..." The language of the
document and Ped's subsequent signing demonstrated the parties' mutual assent to the settlement of
Ped's claim. Further, Ped's acceptance of the $5,000 was sufficient consideration to bind Ped to the
settlement release.

Ped may counter that the injuries related to the infection did not arise until one month after the
accident which was one week after the settlement was consummated. Ped could not have known of

Fleming’s Fundamentals Of Law (© 2004/2005) Torts I Page 25

these injuries at the time of signing and should not be barred from pursuing recovery for these later
discovered injuries

However, by singing the agreement, the majority of courts would hold that Ped was waiving any
future damage claims against Driver. In a minority of jurisdictions where the release would not be
upheld for the unknown injuries, Driver would be entitled to a $5,000 set-off for any future damage
claims rendered against him.

(3) DRIVER v. DR. BROWN

Release - Joint Tortfeasors

At common law, a release of one joint tortfeasor operated to release all tortfeasors. Modernly, a
release for one tortfeasor would not release other tortfeasors but would merely reduce claims
against them.

Dr. Brown will argue that even though he and Driver acted entirely independently, the concurrence
of their negligent acts caused single indivisible physical injuries to Ped. As such, the majority of
jurisdictions would classify Driver and Dr. Brown as joint tortfeasors. Therefore, when Ped signed
Driver's release, the language of the release "I hereby release Driver of all liability..." not only
operated to relieve Driver of all liability, but, under common law, the release would also act to relieve
Dr. Brown of liability.

Modernly, Dr. Brown's liability would not be discharged since he was not a party to that release.
However, Dr. Brown's financial liability could be reduced by the $5,000 that Ped received from
Driver in compensation for the injuries he sustained.

Driver's release should not relieve Dr. Brown of liability.

Indemnity

A defendant who is secondarily liable for plaintiff’s injuries but is sued and forced to pay a
judgment is entitled to reimbursement against the party who was primarily responsible for causing
the injury.

It appears that Dr. Brown's negligent medical treatment was primarily responsible for the Ped's
hospitalization and greatly weakened condition.

In those jurisdictions where Driver would not be relieved of liability for these damages despite the
release, Driver will argue that Dr. Brown's negligence aggravated the severity of Ped's injuries.
Since the degree of each tortfeasor's culpability greatly differed, Driver would shift the entire
responsibility for the aggravated damages to Dr. Brown. He would seek reimbursement from Dr.
Brown for any additional judgment that he was forced to pay Ped.

Driver should be entitled to indemnification against Dr. Brown.

Contribution

Contribution involves tortfeasors who are jointly and severally liable and requires each to pay his
proportionate share. Common law did not allow contribution between joint tortfeasors. Modernly,
contribution is permitted among negligent joint tortfeasors.

If Driver and Dr. Brown are classified as joint tortfeasors, in those jurisdictions that adhere to the
common law, contribution will not be allowed.

Fleming’s Fundamentals Of Law (© 2004/2005) Torts I Page 26

Modernly, if Ped receives a judgment against Dr. Brown, Dr. Brown may sue Driver for payment
of a proportionate share of that verdict on the basis that joint tortfeasors are each jointly and
severally liable for any recovery rendered against either defendants.

However, contribution is allowed only against judgment tortfeasors. If Ped elects to sue only Dr.
Brown, then Dr. Brown cannot obtain contribution from Driver.

In the instance that Driver's release does not act to relieve him of liability for Ped's aggravated
medical condition and Ped prevails in a suit against both he and Dr. Brown, Driver may be required
to pay a portion of the judgment depending upon what the court determines his proportionate share
to be. He will receive a set-off for the $5,000 he has already paid.

There are not enough facts to determine whether contribution will be permitted.

Fleming’s Fundamentals Of Law (© 2004/2005) Torts I Page 27

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