Torts

I. Intentional Tort...................................................................................................................3
I-1. General.................................................................................................................................3
<Intent>...................................................................................................................................................3
<Transferred Intent>................................................................................................................................3
I-2. Battery / Assault / False Imprisonment............................................................................3
<Battery Cause of Action> 2/20 ............................................................................................................3
<Assault Cause of Action>......................................................................................................................3
<False Imprisonment Cause of Action> 1/18..........................................................................................4
I-3. Intentional Infliction of Emotional Distress.....................................................................4
<Intentional Infliction of Emotional Distress Cause of Action>..............................................................4
I-4. Trespass to Property...........................................................................................................4
<Trespass to Land Cause of Action>.......................................................................................................4
<Trespass to Chattel Cause of Action>....................................................................................................5
<Conversion Cause of Action>................................................................................................................5
I-5. Defense.................................................................................................................................5
<Consent> 2/20.......................................................................................................................................5
<Self Defense, Defense of Others and Defense of Property> 2/20 (privilege 全体で)............................5
<Necessity – Public Necessity – an absolute defense> 2/20 (privilege 全体で)......................................5
<Necessity – Private Necessity – a limited defense> 2/20 (privilege 全体で).........................................6
II. Defamation..........................................................................................................................7
<General> 1/18........................................................................................................................................7
<Presumed damage in libel and slander>................................................................................................7
<Public Officials / Public Figure>...........................................................................................................8
<Public Concern but not Public Figure>..................................................................................................8
<Primary Publisher, Republisher and Secondary Publisher >..................................................................8
<Qualified Privilege> 1/18......................................................................................................................8
III. Privacy Torts.....................................................................................................................10
<Tort of Appropriation Cause of Action>.............................................................................................10
<Intrusion of Privacy>...........................................................................................................................10
<False Light>........................................................................................................................................10
<Disclosure>.........................................................................................................................................10
IV. Economic Torts.................................................................................................................11
< Intentional & Negligence Misrepresentation>....................................................................................11
<Intentional Interference with business relations>................................................................................11
V. Negligence Torts................................................................................................................12
V-1. General...............................................................................................................................12
<Negligence Cause of Action> 4/20......................................................................................................12
<Affirmative Duty to Act> 2/20............................................................................................................12
<Standard of care> 3/20........................................................................................................................13
<Standard of care: Children> 2/20.........................................................................................................13
<Standard of care: Professionals> 2/20.................................................................................................13
< Informed Consent – Duty to Disclose Risks>.....................................................................................13

WGM_Trailer
 <Liability of Possessor of Real Property> 2/20 ....................................................................................14
<Attractive Nuisance Doctrine: child trespasser case> 1/18..................................................................14
V-2. Duty & Breach..................................................................................................................15
<Negligence Per Se> 2/20 ....................................................................................................................15
<Res Ipsa Loquitur> 1/20......................................................................................................................15
<Negligent Infliction of Emotional Distress – Near Miss Case> 2/20...................................................15
<Negligent Infliction of Emotional Distress – Bystander Claim>2/20..................................................16
<Negligent Infliction of Emotional Distress – Pre-existing relationship> 2/20.....................................16
V-3. Causation...........................................................................................................................17
<Actual Causation – Merged Causes> Causation 全体で 4/20 .............................................................17
<Actual Causation – Unascertainable/Alternative Cause>....................................................................17
<Proximate Causation>.........................................................................................................................17
< Causation/Damage – Eggshell skull rule> 3/20..................................................................................17
V-4. Damages / Remedies.........................................................................................................18
<Collateral Source Rule>......................................................................................................................18
<Punitive Damages in a Negligence Tort Case>...................................................................................18
<Permanent Injunction – Element>.......................................................................................................18
<Permanent Injunction – Defense>.......................................................................................................18
<Preliminary Injunction>......................................................................................................................18
V-5. Defense...............................................................................................................................19
<Comparative Negligence> 2/20...........................................................................................................19
<Assumption of Risk>...........................................................................................................................19
VI. Strict Liability...................................................................................................................20
< Strict Liability: Wild & Domestic Animals>......................................................................................20
<Strict Liability: Ultrahazardous Activity>...........................................................................................20
<Product Liability: Strict liability> 3/20 ...............................................................................................20
<Product Liability: Liability for Breach of Warranty> 1/20..................................................................21
<Post-Accident Design Modification>..................................................................................................21
VII. Nuisance.............................................................................................................................22
<Private Nuisance>...............................................................................................................................22
<Public Nuisance>.................................................................................................................................22
VIII. Vicarious Liability and Relevant liabilities....................................................................23
<Respondeat Superior – General> 5/20................................................................................................23
<Respondeat Superior – Intentional Tort> 5/20...................................................................................23
<Negligent Hiring > 2/20......................................................................................................................23
<Vicarious Liability for Independent Contractor’s Act> 1/20..............................................................23
<Vicarious Liability of Motor Vehicle Owner>....................................................................................24
<Vicarious Liability of Parent>.............................................................................................................24
IX. Immunity...........................................................................................................................25
<Intra Family Tort Immunity>..............................................................................................................25
<Government Tort Immunity>..............................................................................................................25

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I. Intentional Tort

I-1. General
<Intent>
(Feb2010(WP Q1))
“intent” is satisfied when
(i) purpose is to cause consequence OR
(ii) defendant knows with substantial certainty consequences will occur.

<Transferred Intent>
Mini(p1)
The issue is whether a defendant who intends to commit a tort against one person but instead (i)
commits a different tort against that person, (ii) commits the same tort against a different person, or
(iii) commits a different tort against different person is liable.

Under the transferred intent doctrine, the intent to commit a certain tort against one person is
transferred to the tort actually committed or to the person actually injured for the purpose of
establishing a prima facie case.

e.g., A is liable for battery if A acts with the intent to commit an assault but actually constitutes a
battery.

I-2. Battery / Assault / False Imprisonment

<Battery Cause of Action> 2/20 18
Mini(p2); Feb2010(WP Q1); (WP Q3); (WP Q7)
The issue is what elements are required to establish a prima facie case in battery.

To establish a prima facie case in battery, a plaintiff must show: (i) intent, (ii) harmful or offensive
contact; (iii) with the plaintiff’s person and (iv) causation.

*contact “offensive” when it offends a reasonable sense of personal dignity (= analyzed under a
reasonable person standard).
means “unpermitted by a normal person with ordinary sensitivity in regular society”.

<Assault Cause of Action>

Mini(p2); (WP Q3)
The issue is what elements are required to establish a prima facie case in assault.

To establish a prima facie case in assault, a plaintiff must show: (i) intent, and (ii) that the defendant
put the plaintiff in a reasonable apprehension of (iii) immediate battery (harmful or offensive
contact) and (iv) causation.

As to (ii) reasonable apprehension, P must (a) be aware of D’s act; AND (b) believe that D is able to

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 commit the act.
*Physical contact is not necessary.
*Threat directed exclusively toward the future does not satisfy the “immediate” requirement.

<False Imprisonment Cause of Action> 1/18

Mini(p3); FEB2012(WP Q5)
The issue is what elements are required to establish a prima facie case in false imprisonment.

To establish a prima facie case in false imprisonment, a plaintiff must show: (i) intent, (ii) act of
restraint or omission, (iii) resulting in confinement in thea bounded area; ANDand (iv). T the fact
that the plaintiff must bewas conscious of know of the confinement or wasbe harmed by it.

* “Bounded” means that there must be no reasonable means of escape known to plaintiff and
freedom of movement must be limited in all directions.

I-3. Intentional Infliction of Emotional Distress

<Intentional Infliction of Emotional Distress Cause of Action>
Mini(p3~4)
The issue is what elements are required to establish a prima facie case in intentional infliction of
emotional distress.

To establish a prima facie case in intentional infliction of emotional distress, a plaintiff must show:
(i) intent (or recklessness),
(ii) extreme and outrageous conduct,
(iii) causation, and
(iv) actual damage (severe emotional distress).
* Conduct is outrageous when it exceeds all bounds of decency tolerated in a civilized society.

* There is no physical injury requirement for intentional infliction of emotional distress; Actual
damage (i.e., severe emotional distress) is required.
* Physical injury is an element of negligent infliction of emotional distress in most jurisdictions.
* With respect to (i) intent (or recklessness), recklessness itself will satisfy the intent requirement
unlike other intentional torts.
* Whether the conduct in question is “(ii) extreme and outrageous” or not, the court tends to take the
following factors into account:
1. Continuous or repetitive;
2. D is a common carrier or an innkeeper (if so, the conduct easily falls into “outrageous” conduct)
3. P is a member of a fragile class of person (e.g. children, elderly, pregnant women) (if so, mere
insult can be “outrageous” conduct).

I-4. Trespass to Property

<Trespass to Land Cause of Action>
Mini(p4~5)
The issue is what elements are required to establish a prima facie case in trespass to land.

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 To establish a prima facie case in trespass to land, a plaintiff must show: (i) intent, (ii) physical
invasion to the land, (iii) interference with the possession of the land by the plaintiff and (iv)
causation.

As to (i) intent, the intent to trespass is NOT required. Defendant needs intent only to enter onto that
particular piece of land; he need not know that the land belonged to another.
* ”Physical invasion” may be by object and “land” includes not only the surface but airspace and
subterranean.

<Trespass to Chattel Cause of Action>

Mini(p5)
The issue is what elements are required to establish a prima facie case in trespass to chattel.

To establish a prima facie case in trespass to chattel, a plaintiff must show: (i) intent, (ii)
interference of personal property (iii) that the interference is modest (iv) damage and (v) causation.
In trespass to chattel action, the plaintiff may recover the repair/rental cost (diminished value) of
the property.
*“Interference” may be (a) directly damaging the chattel or (b) depriving the possession.
* Actual damage is required, but sufficient at least to a possessory right.

<Conversion Cause of Action>

Mini(p5~6)
The issue is what elements are required to establish a prima facie case in conversion.

To establish a prima facie case in conversion, a plaintiff must show: (i) intent, (ii) interference of
personal property, and (iii) that the interference is significant and (iv) causation. In conversion
action, the plaintiff may recover the fair market value of the property (not the cost of repair/rental;
“You broke it, you buy it”) or possession (replevin) at the time and place of the conversion.

I-5. Defense
<Consent> 2/20
may be express or implied.
D cannot exceed the scope of the consent.

<Self Defense, Defense of Others and Defense of Property> 2/20 (privilege 全体で)
Penn Note(p11); Mini(p7~)
The issue is whether the defendant may raise an affirmative defense of protective privilege. (“Self
Defense”, “Defense of Others” and “Defense of Property”)

To establish protective privilege defense, the defendant must show: (i) proper timing (imminent or
in progress of commission), (ii) reasonable belief that the threat is genuine, and (iii) reasonable
method (=proportionality) (necessity under the circumstance).

As to (iii), the defendant may use deadly force so long as a human being is facing deadly threat.

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<Necessity – Public Necessity – an absolute defense> 2/20 (privilege 全体で)
Penn Note(p12); Mini(p11)
The issue is whether the defendant may raise an affirmative defense of public necessity.

To establish public necessity defense, the defendant must show: (i) the defendant was in an
emergency situation when he invaded the property, and (ii) the purpose of invasion was to protect
the community as a whole or significant group of people.
* This is an absolute defense and the defendant has no liability if he successfully establishes this.

<Necessity – Private Necessity – a limited defense> 2/20 (privilege 全体で)

Penn Note(p12); Mini(p11)
The issue is whether the defendant may raise an affirmative defense of private necessity.

To establish private necessity defense, the defendant must show: (i) the invasion of the property was
reasonably necessary (ii) to prevent substantially more serious harm than the invasion.
(i) the defendant was in an emergency situation when he invaded the property, and (ii) the purpose
of invasion was to protect an interest of his own.
* This is a limited defense. If the defendant successfully establishes this defense, a tort does not
exist. However, the defendant must compensate actual harm he caused to the property.
* The property owner may not eject the defendant so long as the emergency continues.

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II. Defamation
<General> 1/18
Mini(p12~), Penn Note(p13~)
The issue is what elements are required to establish a prima facie case in defamation.

To establish a prima facie case in defamation, a plaintiff must show following common law
elements:
1. defamatory statement by the defendant that specifically identifies the plaintiff (“of or
concerning” the plaintiff);
2. publication of the statement; and
3. actual damages except for libel and slander per se case.

If the defamation involves a matter of public concern, the Constitution requires two additional
elements: (see <Defamation – Public Figure>)
4. falsity of the defamatory statement
5. fault on the part of defendant

* “Defamatory statement” is a statement that tends to adversely affect a person’s reputation.

Opinions are not generally defamatory but will be if the listener would assume that the speakers have
a factual basis for the opinion.
* Truth is an absolute defense to defamation. P does not need to prove element 4 “falsity”, rather D
can offer truth of the statement as a defense.
*Defamation of a deceased parson is not actionable. Any living person may be defamed.

<Presumed damage in libel and slander>

Mini(p14~), Penn Note(p14)
The issue is whether a plaintiff must prove the damage in a defamation tort case.

Under common law, (a) libel is a statement in written or other permanent form; (b) slander is a
statement in oral or spoken. Slander cases are categorized into (1) slander per se and (2) slander
NOT per se.

In (a) libel cases, damage is presumed.

In (b) (1) slander per se cases, treated identically to libel for the purpose of damages (i.e., damage is
presumed; no need to prove). Slander per se is any spoken defamation that falls into the following
categories:
1. statement that relates to plaintiff’s ability in business or profession;
2. statement imputing crime of moral turpitude (serious crime with moral dimension);
3. statement imputing unchastity to a women;
4. statement that the plaintiff suffers from a loathsome disease;

In (b)(2) slander NOT per se cases, Plaintiff is obliged to prove peculiar damages

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<Public Officials / Public Figure>
Mini(p15); Big(p29); (WP Q8)
The issue is what elements are required to establish a prima facie case in defamation of a public
figure.

To establish a prima facie case in defamation of a public figure, a plaintiff must show:
1. defamatory statement by the defendant that specifically identifies the plaintiff (“of or
concerning” the plaintiff);
2. publication of the statement;
3. actual damage;

When the P is a public official or public figure, P must additionally show that
4. the statement is false; and
5. the defendant’s malice, which means that the defendant knew the falsity or recklessly
disregarded the truthfulness of the statement;

Damages are not presumed unless P shows that the publication was made with knowledge of its
falsity or with reckless disregard for the truth.

<Public Concern but not Public Figure>

Mini(p17)
The issue is what elements are required to establish a prima facie case in defamation of non-public
figure regarding public concern.

To establish a prima facie case in defamation of a non-public figure but regarding public concern,
a plaintiff must show:
1. defamatory statement by the defendant that was “of or concerning” the plaintiff;
2. publication of the statement;
3. actual damage;

When P is a private figure but the statement is a matter of public concern, P must additionally show
that
4. the statement is false; and
5. the defendant’s negligence regarding the falsity.

* Where the defendant is negligent, only “actual injury” damages are recoverable (Damages are not
presumed. No exception for libel and slander per se case). However, where malice is found, damages
may be presumed, and punitive damages allows.

<Primary Publisher, Republisher and Secondary Publisher >

Big(24~25)
The issue is whether a (a) primary publisher, (b) republisher or (c) secondary published are
liable or may rely on the research of the original publisher.

(a) “primary publisher” is each individual who takes part in making the publication (e.g., a
newspaper or TV station, not including internet service provider), and is held liable for that
message to the same extent as the author or speaker.
(b) “republisher” is one who repeats a defamatory statement, and is held liable on the same

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 general basis as a primary publisher. This is so even so if the repeater states the source or
makes it clear that she does not believe the defamation.
(c) ”secondary publisher” is one who is responsible only for disseminating materials that might
contain defamatory matter (e.g., a vendor of newspapers), and is liable only if he knows or
should know of the defamatory facts.

<Qualified Privilege> 1/18

Mini(p18), Big(p31~); (WP Q8)
The issue is whether a person who reports other person’s conduct to an authority is privileged from
defamation.
The qualified privilege situations are the following:
(a) reporting of official/public proceedings;
(b) public interest ((1) publication made to one acting in public interest, (2) fair comment and
criticism);
(c) defending the interest of publisher;
(d) recipient has interest in the information;
(e) common interest btw publisher and recipient exists.

e.g., statements by former/prospective employers when made in good faith and for a legitimate
purpose.

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III. Privacy Torts
<Tort of Appropriation Cause of Action>
Mini(p18); Penn Note(p17)
The issue is what elements are required to establish a prima facie case in tort of appropriation.

To establish a prima facie case in tort of appropriation, a plaintiff must show:

1. the defendant used the plaintiff’s name or likenessimage (picture)
2. for D’S commercial advantage purpose,
3. without permission.
* News or biography is not subject to tort of appropriation because it is not considered purely
commercial (newsworthiness exception).

<Intrusion of Privacy>
Mini(p18); Penn Note(p17)
The issue is whether a plaintiff may bring an action on ground of intrusion.

Intrusion is (i) invasion of the plaintiff’s private affairs or physical seclusion; (ii) P has a
reasonable expectation of privacy; AND (iii) that would be highly objectionable to an average
reasonable person.

<False Light>
Mini(p18~); (WP Q8); Penn Note(p18)
The issue is whether a plaintiff may bring an action on ground of false light.

False light is (i) widespread dissemination of (ii) a major misrepresentation about the plaintiff
(iii) that would be highly objectionable to an average reasonable person. Honest mistake is not a
defense.
* If the matter is of public interest, actual malice must be proved.

<Disclosure>
Mini(p18); Penn Note(p19)
The issue is whether a plaintiff may bring an action on ground of disclosure.

Disclosure is (i) widespread dissemination of (ii) confidential information about the plaintiff (iii)
that would be highly objectionable to an average reasonable person. If the information is
newsworthy, it is not actionable (newsworthiness exception).

However, New York does not recognize this kind of tort.

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IV. Economic Torts
<Fraud Intentional & Negligence Misrepresentation>
Mini(p19)
The issue is what elements are required to establish a prima facie case in fraud.

[Intentional]
To establish a prima facie case in fraud intentional misrepresentation, a plaintiff must show: (i)
affirmative misrepresentation of material fact the fact in connection with commercial
transaction, (ii) scienter (intentknew that the statement was false), (iii) intent to induce reliance,
(iv) justifiable reliance, (v) causation (actual reliance) and (vi) damages.

*There are no defenses to intentional misrepresentation.

[Negligent] (job accept させるときとか transaction に induce するときの misrep)

P must show: (i) misrepresentation of material fact, (ii) supplied for the guidance of others in a
business transaction, (iii) D knew or should have known that the info was supplied to guide P, (iv)
D was negligent in obtaining or communicating the false info, (v) actual and reasonable reliance,
and (vii) the false information proximately caused damages.

<Intentional Interference with business relations>

Mini(p20)
The issue is what elements are required to establish a prima facie case in inducing a breach of
contract, a tort theory.

To establish a prima facie case in interference with business relations, a plaintiff must show:
1. a valid contractual relationship or valid business expectancy;
2. the defendant’s knowledge of the contractual relationship or expectancy;
3. the defendant’s intentionally induced anotherinterference designed to cause or induce the third
party to breach the contractual relationship or expectancy;
4. subsequent breach; and
5. . damages.

[Defenses] Defense of legitimate competitive activity (if no dishonest, wrongful, or illegal acts were
used); Giving truthful information to another; Having a financial interest in the party that breached
the contract or terminated the relationship; and Honestly giving requested advice (usually, in the
context of a special relationship such as attorney-client, parent-child, or clergy-penitent)

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V. Negligence Torts

V-1. General
<Negligence Cause of Action> 4/209/18
Mini(p21); Feb2010(WP Q1); Feb2009(WP Q2); (WP Q3); (WP Q4); FEB2012(WP Q5); (WP Q7)
The issue is what elements are required to establish a prima facie case in negligence.

To establish a A prima facie case in for negligence , a plaintiff must showis:

1. the defendant owed a duty of care to a foreseeablethe plaintiff;
2. the defendant breached that duty;
3. the breach of the duty was the a factual cause and the proximate cause of the plaintiff’s
injury;
4. the plaintiff suffers suffered damages.

[そもそも unreasonable risk が作出されていない事案(duty of care の有無自体が問題になっている事案)

では以下を使う] When a parson engages in an activity, he is under a legal duty to act as a
reasonable prudent person. It is presumed that an ordinary, prudent, reasonable person will take
precautions against creating unreasonable risks of injury to other persons.
 If a defendant’s conducts create an unreasonable risk of injury to persons in the position of the
plaintiff, the defendant owed general duty of care to the plaintiff.

*In general, standard of duty is a reasonably prudent person acting under the similar
circumstance.
● Superior knowledge/physical characteristics (if relevant) will be taken into account.
● Children of 4-18: a hypothetical reasonable child of similar age, experience and intelligence
acting under the similar circumstance
● Professionals: an average member of that profession in the similar community.
● To prove proximate cause, plaintiff must show his damage was foreseeable consequence of
the breach.

*Unreasonable risk を生じたかどうかの判断

・リスクの予見可能性がなければ unreasonable risk とはいえない。
・リスクを回避・軽減可能でなければ unreasonable risk とはいえない。
不合理なリスク判断か否かが問題であるため、理論的に回避可能かどうかが問題ではなく、被告の立場
において現実的に別の行動が選択し得たかが問題。例えばプロ野球選手がフェンス越えのホームランを
打って、通行人に当たったとして、そもそも球を打たなければよいから回避可能性がある、ということにはな
らない。
経済合理的に選択可能な現実的な回避・軽減方法が存在したにも拘らずそのような方法をとらなかった
場合には unreasonable risk になる。
・最終的に unreasonable risk か否かは当該行為の効用とリスクの比較衡量による（ハンドの公式）

[breach のあてはめ] fail to take precaution that a reasonable and prudent person would take.
 could have easily avoided the result by doing….

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<Affirmative Duty to Act> 2/20
The issue is whether an affirmative duty to act is required.

Generally, a defendant owes no legal duty to act affirmatively.

However, a defendant owes a duty to act reasonably under the circumstances, if (i) there is a pre-
existing relationship between the parties, (ii) the defendant put the plaintiff in peril, or (iii) the
defendant has already undertaken to rescue the plaintiff.

[Pre-existing relationship]
(i) Family;
(ii) Common carrier or innkeeper (guest or passenger);
(iii) Business invitees;
(iv) Land occupier and invitees;
(v) Two friends out dinner together (without labor relationship).

[Rescuer]
liable if (a) failure to exercise such care increase the risk of harm; OR (b) the harm is suffered
because of the reliance on the rescuer.
 Under this standard, a rescuer is liable for any bodily harm caused to the other person if (1) aid is
discontinued; AND (2) P is left in a worse position.

<Standard of care> 3/20

 Every person owes a duty to act as a reasonable prudent person would act under like
circumstances. A reasonable prudent person takes appropriate measure to avoid foreseeable
risks. This duty of care is owed to all foreseeable plaintiffs.
 A person with a physical disability must act as a reasonable person with the disability would
act. However, a person with below average intelligence or mental disability must act as a
reasonable person without the disability would act.

<Standard of care: Children> 2/20

 Children are capable of age 4-18 are capable of negligence, but are held to a different standard
than adults.
 Children are held to the standard of care of a hypothetical child of similar age, experience
and intelligence acting under the similar circumstances.
 If a child is engaged in an adult activity, the child has a duty to act as a reasonable adult would
under the circumstances.

<Standard of care: Professionals> 2/20

 A professional owes a duty to act as an average member of that profession in the similar
community. P must exercise the skill and knowledge normally possessed by members of that
profession in good standing.

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<Doctrine of Informed Consent by Doctor – Duty to Disclose Risks>
Mini(p22), Big(47)
The issue is whether the defendant breached his duty to obtain informed consent.

A doctor has a duty to explain to the patient the risks of the proposed treatment that a reasonable
patient would want to know. A doctor breached this duty if (a) an undisclosed risk was serious
enough that a reasonable person would have withheld consent on learning of the risk.

<Liability of Possessor of Real Property> 2/20 1/18

Mini(p23~), Penn Note(p25~)
The issue is to what extent a possessor of real property owes a duty to the person who comes to the
real property.

A possessor of real property has a duty of care that a hypothetical reasonably reasonable prudent
person acting under the similar circumstance would have owed. The status of the plaintiff is,
however, still important; it affects the degree of duty of care.

Multi State rule:

1. to undiscovered trespasser: no duty is owed liability;
2. to discovered or reasonably anticipated trespasser: the landowner must warn of or make safe
highly dangerous, concealed artificial conditions that the landowner knows of (known,
manmade, concealed from the trespasser, death trap),
3. to licensee: the landowner must warn of or make safe all dangerous conditions that are known
to the landowner but are not apparent to a guest (known traps that are concealed from the
trespasser),
4. to invitee: the landowner must make reasonable inspections of the property to find and make
safe all reasonably knowable traps that are concealed from the trespasser.

<Attractive Nuisance Doctrine: child trespasser case> 1/18

Mini(p24)
The issue is whether a landlord is liable for children’s damage caused by artificial conditions on his
property.

A landlord owes a duty to exercise ordinary care to avoid a reasonably foreseeable risk of children
caused by artificial conditions (occasionally a natural condition may suffice) on his property. To
establish the doctrine’s applicability, plaintiff must show:
1. a dangerous condition on the land that the owner is or should be aware of;
2. the owner knows or should know children frequent the vicinity of the condition;
3. the condition is likely to cause injury because of children’s inability to appreciate the
risk; and
4. the expense of remedying the situation is slight compared with the magnitude of the risk.

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V-2. Duty & Breach
<Negligence Per Se> 2/20 3/18
Mini(p26); Feb2009(WP Q2)
The issue is when a plaintiff may borrow a statute’s duty to replace the reasonable prudent person
standard of care.

Under the doctrine of negligence per se, P must show: The general rule is that a statute providing
criminal penalty may establish a specific duty that will replace the reasonable prudent person
standard of care if the plaintiff shows:
1. a criminal statute states the specific duty;
2. the plaintiff falls within the class of persons the statute is designed to protect; and
23. the accident falls within the type of risks that the statute is designed to prevent.

If negligence per se applies, conclusive presumption of duty & breach is established when D
breaches the statute.

However, this replacement does notDOES NOT take place if:

(a) statutory compliance causes more danger than statutory violation; or
(b) if compliance with the statute is impossible or beyond D’s control under the circumstance.

*Negligence Per Se が成立した場合、duty of care と negligence について conclusive presumption が生じる。

そのため、Negligence Per Se が成立した場合に被告は duty of care がないとか negligence がないという反論
をすることはできない（causation がない、damages がないという反論は可能）。

<Res Ipsa Loquitur> 1/20

Mini(p28)
The issue is whether the court may dismiss the action on ground of failure to state cause of
action.

In order to establish a prima facie case in a negligence tort case, plaintiff must state, among other
things, a breach of a duty. If plaintiff establishes res ipsa loquitur, the court cannot dismiss the
action on ground of failure to state cause of action (especially with respect to breach); the plaintiff
can get to the jury. To establish res ipsa loquitur, a plaintiff must show:
1. P’s injury is of a sort that typically does not occur without negligence the accident is the type
that normally associated with negligence; and
2. the negligence is within the scope of duty that D owed to P;
3. what caused the P’s injury was in the D’s exclusive control; AND
4. P was not the reason for the injury’s occurrence.

this type of accident is normally due to the negligence of someone in the defendant’s position.

<Negligent Infliction of Emotional Distress – Near Miss Case> 2/20

Mini(p26); FEB2012(WP Q5)
The issue is what elements are required to establish a prima facie case in negligent infliction of
emotional distress.

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 To establish a prima facie case in negligent infliction of emotional distress in a near miss case, the
plaintiff must show:
1. the defendant’s negligence,
2. the plaintiff was in zone of physical danger; and
3. the plaintiff suffered a physical symptoms due to emotional distress.

<Negligent Infliction of Emotional Distress – Bystander Claim>2/20

Mini(p27)
The issue is what elements are required for a bystander (outside the “zone of danger”) to establish a
prima facie case in negligent infliction of emotional distress.

To establish a prima facie case in negligent infliction of emotional distress for a bystander-
plaintiff, the plaintiff must show:
1. the defendant’s negligence,
2. the victim suffered a injury,
3. the plaintiff was present at the scene and personally observed or perceived the event;
4. the plaintiff suffered a physical symptoms due to emotional distress; and
54. the plaintiff is an closely related to the victim; and.
5. the plaintiff suffered physical symptoms due to emotional distress.

<Negligent Infliction of Emotional Distress – Pre-existing relationship> 2/20

Mini(p27)
1. there is a pre-existing relationship between P & D
2. the negligent act can foreseeable cause distress.

* no physical symptom required: (i) mishandling the corpse; or (ii) false reporting the death.

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V-3. Causation
<Factual Actual Causation – Merged Causes> Causation 全体で 4/20 3/18
Mini(p29)
The issue is whether factual causation exists in the case of multiple defendants.

The general rule is that factual causation is determined by “but for” test. However, where several
causes commingle, and bring about an injury, but any one alone would have been sufficient to
cause the injury multiple negligent defendants commingle causes, the factual causation exists if each
defendant’s negligence is a substantial factor in causing the plaintiff’s harm.

<Factual Actual Causation – Unascertainable/AlternativeUnknownable Cause>

Mini(p29)
The issue is whether factual causation exists in the case of multiple defendants.

The general rule is that factual causation is determined by “but for” test. However, where a plaintiff
proves the injury came from either one of the defendantsthat two or more Ds have been negligent,
but it’s uncertain which one actually caused the injury, the courts will shift the burden of proof
shifts and each defendant must prove to negate factual causation. If neither defendant satisfies the
proof, they will be jointly and severally liable.

<Proximate Causatione>
Mini(p30); Feb2009(WP Q2)
The issue is whether proximate causation exists when intervening force (e.g., medical negligence or
other malpractice) intervenes.

Since every act has an infinite number of consequences, plaintiff must prove that particular breach
is within the limit of foreseeable possibilities.

[Intervening medical negligence]

It is well settled that in case of intervening medical negligence, defendant is liable for all resulting
injuries, even if the intervening medical negligence aggravated the injury. It should be noted that
negligent doctor remains liable for his negligence as well.

[Intervening criminal acts]

Usually not foreseeable, UNLESS (a) D should have anticipated the criminal act; OR (b) D created
or increased the risk of the criminal act.

< Causation/Damage – Eggshell skull rule> 3/20

The Eggshell Plaintiff Rule requires that a tortfeasor takes his victim as he finds him. Thus, a D is
liable for ALL harm a P suffers as a result of his conduct, even if P suffered from a preexisting
mental or physical condition that made the harm greater than what a normal person might suffer.

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V-4. Damages / Remedies
<Collateral Source Rule>
Mini(p32)
The issue is whether a plaintiff’s recovery is reduced when the plaintiff receives insurance on
ground of the same accident.

Recovery is not reduced just because the plaintiff received benefits from other sources such as
health insurance (collateral source rule).

<Punitive Damages in a Negligence Tort Case>

Mini(p32)
The issue is whether punitive damages are available not only in an intentional tort case but also
in a negligence tort case.
Plaintiff may recover punitive damages if defendant’s conduct is “wonton and willful,”
reckless, or malicious.

<Permanent Injunction – Element>

Penn Note(p36)
The issue is what elements are required to obtain injunction.

To obtain injunction, a plaintiff must show in addition to showing the elements of the
underlying tort:
1. the plaintiff has no adequate remedy at law;
2. the plaintiff has a protective right;
3. the injunction is enforceable;
4. benefit to the plaintiff outweighs burden on the defendant.

<Permanent Injunction – Defense>

Penn Note(p36)
The issue is what defenses are available against an action for injunction.

To dismiss an action for injunction, a defendant may raise defenses of (i) unclean hands; (ii)
laches; and (iii) the First Amendment interests. That is:
1. the plaintiff did unfair, unjustifiable acts concerning the same transaction;
2. the plaintiff did not promptly seek injunction and the defendant detrimentally changed
his position; and
3. the injunction would violate the First Amendment right of the defendant such as freedom
of speech.

<Preliminary Injunction>
Penn Note(p37)
The issue is whether the plaintiff may obtain a preliminary injunction.

A plaintiff seeking equitable relief may obtain a preliminary injunction upon showing the court

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 by affidavit:
1. the threat of irreparable injury, and
2. probability of success on the merits.

V-5. Defense
<Comparative Negligence> 2/20
Mini(p34)
The issue is whether and which percentage of damage a negligent plaintiff may recover damages.

Under pure comparative negligence, P’s negligence will NOT bar his recovery; however, it reduces
the P’s recoverable damage by the percentage of his own fault.

In a partial comparative negligence jurisdiction, if P contributed more than 50% to his own injury,
P’s claim is barred.

In a contributory negligence jurisdiction, P CANNOT recover damages if he contributed to his own

injury.
Two exceptions: (1) where D had the last opportunity to avoid the injury; OR (2) D was reckless.

There are 2 ramifications:

(1) “Pure Comparative Negligence”, which allows recovery no matter how great plaintiff’s negligent
was.
(2)”Partial Comparative Negligence”, which bars recovery if plaintiff’s negligence was more serious
than defendant’s negligence.

Barbri Mini(p34) says that “On the MBE, assume that Pure Comparative Negligence applies unless
the question states otherwise.” Thus, if P is 60% at fault, her damages are reduced by 60%.

<Assumption of Risk>
Mini(p33)
The issue is whether a plaintiff who assumed risk may recover damages.

Under traditional common law rule, a plaintiff is absolutely barred from recovery if the plaintiff: (i)
knows and appreciates the particular risk, and (ii) voluntarily proceeds in the face of the risk.
* May be express or implied

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VI. Strict Liability
< Strict Liability: Wild & Domestic Animals>
 An owner of a domestic animal will NOT be strictly liable for harm caused by the animal
UNLESS the owner has knowledge of the animal’s vicious propensities. Domestic animals
include dogs, cats, and farm animals.
 However, an owner of a wild animal is subject to strict liability for harm caused by the
animal, regardless of the safety precautions taken by the owner.

<Strict Liability: Ultrahazardous Activity>

Mini(p36); Penn Note(p40)
The issue is what elements are required to establish a prima facie case in strict liability for
ultrahazardous activity.

To establish a prima facie case in strict liability for ultrahazardous activity, a plaintiff must show
that the defendant engaged in an activity that: (i) imposes risk of serious harm, (ii) cannot be
reasonably safe, and (iii) uncommon in the community, and (iv) the harm must result from the kind
of danger to be anticipated from the dangerous activity.

<Product Liability: Strict liability> 3/20 2/18

Mini(p36~); Penn Note(p41); (WP Q4); FEB2008(WP Q6)
The issue is what elements are required to establish a prima facie case in strict liability for product.

To establish aA prima facie case in for strict liability for product, a plaintiff must show is:
(1) the defendant is a merchant who routinely deals in goods of this type (commercial supplier);
(2) the product is defective;
(3) the defect existed when the product left the defendant’s hands;
(4) the defendant [sale] or [produce and place the product into a stream of commerce];
(5) the plaintiff is a foreseeable user making an intended or foreseeable unintended use;
(6) causation; and
(7) damages.

* Product is defective if
(a) [Manufacturing defect] (1) the product differs from the intended design; (2) it wasthat makes the
product dangerous beyond the expectation of the ordinary consumer (manufacturing defect); OR

(b) [Design defect] less dangerous modification (alternative) was economically feasible (design
defect).  (1) safer; (2) cost effective; (3) practical in utaritarian sense

(c) [Information defect (Inadequate Warning)] (i) the residual risk that cannot be designed out in a
practical way; (ii) hidden from consumer; and (iii) lacks adequate warning.

* Product liability の事例では(i) intent, (ii) negligence, (iii) strict liability, (vi) implied warranties
of merchantability/fitness for a particular purpose, Express warranty, (v) representation theory の 5
つの法律構成が問題になり得る。問題文 MEE で指示がなければ メインの３つ Strict Liability を検討
する（原告にとって最も立証が容易だから）。

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<Product Liability: Liability for Breach of Warranty> 1/20
A PL case may be based on a breach of express or implied warranty.

The Implied Warranty of Merchantability requires that ALL goods sold by a merchant MUST be
fit for their ordinary purpose. In such action, the only issue is whether the product was merchantable
when sold.

An Implied Warranty of Fitness for a Particular Purpose is created when (1) a seller knows or
has reason to know of the buyer’s particular purpose for which the goods are required; AND (2) the
buyer relies on the seller’s skill or judgment to select or furnish suitable goods.

A seller is liable for a breach of an Express Warranty she makes to a buyer. An express warranty is
created when (1) a seller makes an affirmation of fact, promise, or description, or provides a sample,
(2) which relates to the goods, and (3) it becomes part of the basis of the bargain.

* Disclaimer of a warranty is usually not effective for a personal injury action.

<Post-Accident Design Modification>

Rule 407 of the Federal Rules of Evidence
The issue is whether evidence of a post-accident design modification may be admissible to prove
defendant’s negligence.

Common law rule excludes subsequent remedial measures to prove negligence. See Rule 407 of the
Federal Rules of Evidence (which codifies the common law).

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VII. Nuisance
<Private Nuisance>
Mini(p43); Penn Note(p45)
The issue is what elements are required to establish a prima facie case in private nuisance.

To establish a prima facie case in private nuisance, a plaintiff must show that the defendant’s
conduct substantially and unreasonably interfered with the plaintiff’s use or enjoyment on land.

* substantial to average person (P’s hypersensitivity or unique use of the land is defense)
* unreasonable = balancing test (utility vs harm)

<Public Nuisance>
Mini(p43) ; Penn Note(p45)
The issue is what elements are required to establish a prima facie case in public nuisance.

To establish a prima facie case in public nuisance, a plaintiff must show: (i) the defendant’s conduct
unreasonably interfered with the health, safety or property rights of the community; and (ii) the
plaintiff suffered unique damage different from the harm to the community as a whole.

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VIII. Vicarious Liability and Relevant liabilities
<Respondeat Superior – General> 5/20
Mini(p44); Feb2010(WP Q1)
The issue is whether an employer may be held vicariously liable for his employee’s negligence.

Under common law of torts, an employer is vicariously liable for the negligent tortious acts of his
employee if the tort occurs within the scope of employment (the doctrine of respondeat superior).
The “scope” is determined by taking into consideration (=factors) whether:
1. the conduct was “of the kind” the employee was hired to perform;
2. the tort occurred “on the job” (=substantially within the authorized time and space limits);
and
3. the employee was motivated in whole or part intended to benefit the principal.

<Respondeat Superior – Intentional Tort> 5/20

Mini(p44-45)
The issue is whether an employer may be held vicariously liable for intentional tortious acts of his
employees.

The general rule is that an employer is not liable for intentional tortious acts of his employees.
However, at common law of torts, intentional tortious act is considered to be within the scope of
employment and the employer will be held vicariously liable when the act:
1. was specifically authorized to use force by the employer,
2. was the result of naturally occurring friction is generated from the type of employment
relationship, or
3. was driven by a desire to serve the employer. the employee is furthering the business of
employer.

<Negligent Hiring of Independent Contractor> 2/20

Mini(p45)
The issue is whether an employer can be directly (not vicariously) liable for the conduct of its
employee.

In general, a employer is not be liable for tortious acts of its employee if she is a independent
contractor. However Even though an employer is not vicariously liable, an employershe may be
liable for their own negligence by negligently or recklessly selecting, training, controlling or
supervising their employees.

<Vicarious Liability for Independent Contractor’s Act> 1/20

Mini(p45)
The issue is whether a hiring party may be held vicariously liable for tortious acts of the hired
independent contractor.

The general rule is that a hiring party is not liable for tortious acts of the hired independent
contractor. However, a hiring party is vicariously liable if:
1. the hiring party and the independent contractor engage in inherently dangerous activity; or

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 2. the hiring party has a duty that is nondelegable on public policy grounds (e.g., The duty of
businesses to keep its premises and instrumentalities safe for its customers); OR
3. through the doctrine of estoppel where the principal holds the independent contractor out as
his agent to a third party, the third-party reasonably relied.

<Vicarious Liability of Motor Vehicle Owner>

Mini(p45~)
The issue is whether a motor vehicle owner may be held vicariously liable for tortious acts of
the driver.

The general rule is that an automobile owner is not vicariously liable for the tortious conduct of
another person driving his automobiles. However, in some jurisdictions, courts employ other
theories other than vicarious liability to hold an automobile owner liable as follows.

(a) “Family Car Doctrine” has been adopted in many jurisdictions: the owner is liable for
tortious acts of immediate family members with the owner’s express or implied permission.
(b) “Permissive Use Doctrine” has been adopted in some states: imposes liability on the owner
for damage caused by anyone owner’s consent.
(c) “Negligent Entrustment Doctrine” in some states: an owner may be liable for his own
negligence in entrusting the cart to a driver.

<Vicarious Liability of Parent>

Mini(p46)
The issue is whether a parent may be held vicariously liable for tortious acts of her child.

The general rule is that a parent is not vicariously liable for tortious acts of her child. However,
the parent is liable for cases where:
(a) child was acting as an agent for the parent; or
(b) parent was negligent for allowing the child to do something.

However, in most states, a parent is vicariously liable for willful and intentional tortious act of
her child up to the statutory amount of dollars.

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IX. Immunity
<Intra Family Tort Immunity>
Mini(p50); Big(p97);Penn Note(p49)
Under traditional view, one member of a family unit could not sue another in tort for personal
injury, however, this view has changed in most states.
(1) most states have abandoned Husband-Wife Immunity, so either spouse may now maintain
a tort action against each other;
(2) a (slight) majority of states have abolished Parent-Children Immunity.

<Government Tort Immunity>

Mini(p50)
The issue is whether there is immunity for a governmental tortious activity.

Government (federal, state, and municipal) immunity has been eliminated in varying degrees
and where still exists, immunity attaches to governmental, not proprietary, functions.

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