1.

Intentional Tort = ACT + INTENT (TI for diff tort/person, unless IIED =same tort) + CAUSATION
A. Battery: (1) Harmful or offensive actual contact (obj, no harm req). to person/anything connected to it + (2) intent to contact (nnt
harmful/ offensive). Damages = No proof of actual harm req. nominal damages. Punitive if malice.
B. Assault: (1) Act / threats (words + circumstance)+ (2) intent to cause apprehension of imminent harm/ offensive contact. Damages= No
proof of actual harm req. nominal damages. Punitive if malic
C. IIED: (1) extreme & outrageous conduct by D (beyond human decency, not mere threat /insult/ indignity) + (2) intentionally/ reckless
cause severe emotional distress (TI only ofr IIED of diff. person, not tort). Damages = Must prove severe emotional distress beyond RP. Distressed
immediate family can recover regardless of bodily injury. If not family, bystander can recover if distress causes bodily injury
D. False imprisonment: (1) Confinement, victim is conscious of confinement OR harmed by it (unless shopkeeper privilege to reasonable
& limited detention of suspected shoplifter) with (2) intent to confine / restrain within boundaries (no escape): Damages= Prove actual damages
only if P was unaware of confinement. Time of confinement only relevant to proving damages.
E. Defenses
1. consent (but only to scope of what has been consented): (1) express: invalidated if duress/fraud to essential matter; mistakes knowingly
utilized by D (2) implied: by custom, emergency situations, consensual combat/ athletics , but invalid: lack of capacity (youth, intoxication,
incompetence)
2. reasonable & proportionate force in self-defense of anticipated harm, (mistaken reasonable belief of harm ok). Deadly force allowed
only if reasonable belief of serious bodily harm. M: no duty to retreat before using deadly force. Initial aggressor not entitled to self-defense
unless other party responded w/D to ND. Not liable for injuries to bystanders if accidental & not neg.
3. defense of others: reasonable belief that defended party entitled to use force to defend self (reasonable mistake ok)+ reasonable force
proportionate to anticipated harm
4. defense of property: Deadly force never allowed. Reasonable force allowed only if (1) prevent harm (2) prevent intrusion or (3) reclaim
wrongfully taken personal property. Not allowed for repossessing land
5. parental discipline : reasonable force/confinement ok; educator has same rights unless restricted by parent.
6. privilege of arrest: If felony: private ok if (1) actually committed (2) reasonable to suspect person (only allowed mistake for ID of
felon, not whether crime committed). If police: ok if (1) reasonable belief it was commited + (2) suspect person arrested (no tort liability for
mistake of crime). . If misdemeanor, police ok only if committed in arresting party’s presence; private only if breach of peace.
F. Trespass to chattels (tangible personal property): (1) Intentional interefence w/P’s right of possession of personal property by (1)
dispossession or (2) use/intermeddle with (2) intent to do so. Damages= Actual damage + loss of use. If intermeddle, only recover when actual
damages. (+) possible compensation for dimunition in value/ cost of repair
G. Conversion = (1) Interefere w/ P’s right of possession so serious (based on duration/ extent, lack of good faith, beyond inconvenience)
that deprives P of use with (2) intent to commit the act that interferes (nnt, damage, mistake not a defense). Damages = Full value / replevin
H. Trespass to land: (1) physical invasion of property with (2) intent to enter land/ cause physical invasion (NOT trespass). Necessity as a
defense only if (1) private: to protect serious harm, responsible if actual damages. (2) public: unqualified/ absolute privilege to avert immediate
public disaster, not liable for damages even if initial entry not necessary
I. Nuisance Damages= $ or injunctive relief. (1) Private: (1) intentional interference that is (2) substantially offensive to RP in the
community (objective. Hypersensitive cannot recover, but under-sensitive can sue for nuisance even if doesn’t feel annoyed), (3)
unreasonable (injury > usefulness). Proper P: anyone with possessory rights in real property. Generally not nuisance: blocking sunlight/
view unless only purpose of fence is to block view. Defense: (1) regulatory compliance admissible but not determinative, (2) jury can
consider if P “came to the nuisance”. Can use reasonable force to abate if gave notice& D refused to act
(2) Public: unreasonable interference w/ common right to public. Proper P: private citizen suffering harm different in kind from general
public or public official.

2. Negligence
A. Duty: only to foreseeable P by D’s failure to act as RP: rescuers, intended beneficiaries, anticipated victim of a crime (psychotherapist
to 3rd party if patient made credible threats of physical violence against 3 rd party), but not emergency professionals
 Affirmative duty: Voluntarily assumed duty (ordinary care); place aother in peril; contract; authority; relationship (ER-EE); statute
 Standard of care: Reasonably prudent (objective). Compared w/ same physical, not mental characteristics (blind-blind). Voluntarily
intoxicated = sober person standard. Child = reasonable child unless engaged in high risk adult activity.
 Common carrier (highest)> innkeeper (ordinary negligence). automobile driver = liable to guest & passenger, unless “guest statute”.
Bailor (that gives goods) to warn of known dangerous defects. Bailee has higher duty if received compensation
 (M): Invitee (entered for biz = reasonable care to inspect & discover & protect) > licensee (social guest; warn of concealed dangers, use
reasonable care but no duty to inspect) )> trespasser: only willful, unless attractive nuisance to children for artificial condition that has risk
of SBI (some)= reasonable care for all, UNLESS flagrant trespasser.
 Landlord liable for common areas, tenants liable for 3rd parties due to conditions w/in T’s control.
 Off premise victim no duty to prevent risk unless artificial/ rotting trees in urban areas
B. Breach (BOP: preponderance of the evidence). Trad: compare to RP under same circumstances. Modern: violated standard of care if
Burden <P. Custom: admissible but not conclusive unless professional violates custom in same community. If physician (M: national
standard; minority: same or similar locale). Failure to comply with informed consent is malpractice unless (1) risk commonly known, (2)
unconscious, (3) patient waives/incompetent or (4) disclosure too harmful.
 Negligence per se: if violates regulatory statute, D liable to anyone in the class intended to be protected by statute. Defense: compliance
more dangerous than noncompliance, violation is reasonable (emergency), statutory vagueness
 Res ipsa locquitur (circumstantial evidence, only if direct evidence not available) to avoid dismissal. Jury will then decide whether
negligent. (1) P’s harm would not have occurred if D used ordinary care, but P need not exclude all other possibilities, (2) P ot responsible for
injury (3) P’s injury under D’s exclusive control (unless manufacturer no control over packaging/ many medical personnel)
C. Causation
1) Actual Cause: but for D’s act/omission, no injury (JSL: 2D’s each a cause for indivisible harm unless pure several liability). some
allow loss of chance for survival for misdiagnosis. if P’s harm caused by small # of ppl, each who conducted tortious act (firing gun), then
shift BOP to each D to prove his conduct was not cause in fact.
 2) Proximate cause (scope of liability): for reasonably foreseeable consequences & foreseeable victim, but extent of damages don’t have
to be foreseeable (eggshell skull rule)
- Intervening negligent causes after act are foreseeable (subseq. medical malpractice, accident, negligence of rescuers) unless criminal
act(= superseeding cause), unless duty breached by D is failure to use reasonable care to protect P (ex. teacher failed to use reasonable care
during field trip and child assaulted. T still liable).
D. Damages: personal injury (medical expenses, past & future income; parasitic damages: if caused physical harm can sue for emotional
distress, property damages (generally FMV difference before/after injury or cost of repair if doesn’ exceed FMV of house).Collateral
source: trad (insurance not credited against); modern: credited b/c allows double recovery for P. Punitive only allowed if malice, but cannot
exceed single digit ratio. If multiple D: D1 can sue D2 for contribution, and shift loss through indemnification.
E. Defenses: compare D as a group to P
1) Comparative fault jxn (M): Pure: P’s damages reduced by proportion to P’s fault. Partial: If P > D, then no recovery, but under= P’s
recovery reduced by % of fault, unless intentional tort by D.
2) Contributory fault jxn (m, harsh): P’s fault is complete bar to recovery unless (some): D had a last clear chance to avoid injuring P but
failed.
3) Assumption of the risk: no recovery in contrib; reduction in comparative.
4) exculpatory clause in K (not allowed for common carriers, innkeepers); unenforceable if disclaims liability for reckless conduct; gross
disparity in bargaining power; exculpated party offers great services to public; subject to typical K defenses; against PP.
F. Special negligent cases:
1) NIED: P was within zone of danger, and threat of physical impact caused emotional distress + physical symptoms. Bystander outside
zone of danger can recover if (1) closely related to person injured, (2) present at scene (3) personally observed injury. Special relationship can
recover even w/out physical impact/ threat (ex. mishandling spouses’ corpse).
2) Wrongful death suit for loss of income, companionship, affection but not pain & suffering. Survival actions for any claims the
decedent would have had at time of death.
3) Loss of consortium for spouse; parent-child, but child cannot sue for parent if Parent injured but alive
4) Wrongful life (some) by child for being born/ failing to diagnose congenital defect. Wrongful birth usually allowed by moter to sue for
disabled child (pain/ suffering damages + medical expenses for labor)
5) Vicarious liability: Employer responsible for employee’s actions if tort inside scope of employment/ authorized to act as employer’s
agent, unless: (1) intentional tort (unless tort part of job ex. bouncer) or (2) frolic, instead of detour (minor deviation), (3) independent
contractor’s tort (unless negligently selecting independent contractor, VL for non-delegable duty: dangerous activity, acting under apparent
agency).
- Liable for negligent entrustment for car/ other object w/potential for harm if D knows/ should know of driver’s negligent propensitie
- Family-purpose doctrine (D liable for family members driving w/ permission) v. owner liability statutes (liable for anyone driving
w/permission(
- Parent liable for child ONLY (1) child acted as parent’s agent or (2) state statute, (3) assumed liability on child’s driver’s license
- Dram shop/ social guest liability: (many) seller liable for selling alcohol when 3rd party injured due to buyer’s intoxication if buyer was
minor or intoxicated at time of sale
6) Government immunity (generally only for discretionary functions: planning, decision making now limited by FTCA, not waived for
intentional torts by police, ministerial acts (driving while on gov biz). Charitable immunity now limited. Parent-child immunity now limited,
child can sue parent for activities outside core (food, housing) ex. sexual abuse, automobile accident, if parent acting as dual capacity (parent
physician - child, child can sue for medical malpractice)
3. Strict liability (DAD)
A. Abnormally Dangerous Activities: if not common & significant risk of harm (ex. explosion), SL limited to harm expected from
activity
B. Animal: if wild animal (SL, despite owner’s precautions & P’s injuries by fear, but only for invitee & licensee but NOT trespasser,
unless vicious watchdog in some). If abnormally dangerous animal (fierce dog) and owner knows, liable for reasonably foreseeable damages,
general negligence if pet strays on public road. If trespassing animal, then owner liable for foreseeable damages.
C. Defenses: (1) P’s fault only a defense in comparative fault jxn, not a defense in comparative jxn. (2) assumption of risk (3) statutory
privilege by performing essential services.
D. Defective products: product defective at time left D’s control. Defect caused P’s injury in a reasonably foreseeable way. Can be sued by
anyone reasonably foreseeable even if didn’t purchase product. D: must be in the business of selling.
(1) Manufacturing defect: product does not conform to specs (plastic instead of metal) (2) Design defect: (1) consumer-expectation: danger
beyond expectation; (2) risk-utility: risk > benefits and reasonable alternative design (economically feasible available), generally for tech products
(3) failure to warn defect for (1) foreseeable risk of harm, (2) not obvious to ordinary user, (3) risk could have been reduced with reasonable
instructions or warnings. Prescribing physician liable for duty to warn and manufacturer relieved unless (1) birth control pill or (2) OTC drugs.
- Defenses: (1) assumption of risk, (2) unforeseeable misuse (3) already state of the art standard (4) SOL
4. Defamation: (1) defamatory language (diminishing respect, goodwill, deters from associating) (2) that is false (3) concerning P
(specific enough) (4) published/ republished (to 3rd party who understands nature, via conveyance: oral, writing etc). If public figure/concern: P
has BOP of proving falsity. If private person/ matter: P not required to prove false, D can raise as affirmative defense. Actual malice required for
public figure. Libel( written), slander (spoken); slander per se: damags required if accused of commiting a crime, reflects poorly on P’s fitness to
conduct biz, sexual misconduct.
- Defenses: (1) truth (2) consent (but doesn’t exceed scope) (3) absolute privilege between spouses, required publications, judicial
proceeding, (4) qualified privilege if affects important public interest or in interest of D or 3 rd party
5. Invasion of privacy: only to individuals, terminates at death: IFLAP: (1) Intrusion into P’s private affairs that is highly offensive to
reasonable person (no publication required) (2) painting false light in a seemingly objective way (if public matter, P must show malice) (3)
Misappropriation of P’s picture/ name for D’s advantage without consent (4) Public discosure of private fats (even if true, but hard to sue b/c of
1st amendment). Damages= proof of emotional distress sufficient. Special damages not req. Defenses: (1) absolute/ qualified privilege for false
light/ public disclosure, (2) consent. Truth is NOT a defense
6. Intentional misrepresentation: (1) false representation of material fact (2) with intent to induce P to act or refrain in reliance (3) such
actual justifiable reliance (4) knowledge/ reckless disregard of truth