Intentional Torts

1. False Imprisonment
2. Trespass to Land
3. Trespass of Chattel
4. Emotional Distress
5. Conversion
6. Assault
7. Battery
** FITTED CAB **

Intent
Intent needs substantial certainty = knowledge of outcome of actions

Dual Intent – tortfeasor must intend contact/touching to be offensive or harmful

Single Intent – tortfeasor must intend to contact/to touch. Does not require contact to
be intended as offensive or harmful

Transferred Intent – one can still be held liable for battery if they intend harm on one
person, but accidentally harm someone else.
Or if they intend one tort, but commit another tort.

Extended Liability – tortfeasor is liable for ALL the damage they cause

Mentally Ill – treated the same under tort law as mentally sane

Children – can be held liable for intentional torts, but harder to prove
- If they are over 14, yes. Younger, look at totality of circumstances.
Battery
Elements:
1. Act (voluntary movement)
2. Intending to
3. Cause a harmful or offensive (contact) touching, and
4. Harmful or offensive touching occurs

Contact
- Particulate matter (tobacco smoke)
- Contact with another object (bullet)
- Light/sound waves DO NOT equal contact

Offensive Contact Test

1. Offends reasonable sense of personal dignity OR
2. Highly offensive to other’s sensitive sense of personal dignity and the
actor knows

Damages
- Nominal damages – only trivial harm
- Economic damages – medical expenses, lost wages
- Pain and suffering, emotional distress damages – that which is fair and
reasonable
- Punitive damages – malicious, wanton misconduct

Defenses
- Self-defense
- Consent
- Defense of property
- Defense of others
- Necessity
- Discipline
- Detention of investigation
- Legal authority
Assault
Elements
1. Act
2. Intending to
3. Cause a harmful or offensive contact (intent to do battery) OR
4. An imminent (without delay) apprehension (fear) of immediate physical contact

Notes:
- Imminent does not mean immediate, just that the conduct will occur without
significant delay
- Apprehension – lower standard than fear
o Awareness of imminent touching
- Words alone will not suffice. Action is needed to form reasonable apprehension.
- “assault is touching of the mind, not the body”
False Imprisonment
Elements:
1. Act
2. Intending & causing
3. Confinement
4. Within a fixed boundary
5. (a.) Victim is aware of confinement or
(b.) Is injured by confinement

What can cause confinement?

o Assertion of authority
o Duress of goods
o Physical barrier
o Offensive to a reasonable sense of dignity
o Reasonable person -> When a person feels confined
o By threats or demands

Notes:
- Exclusions: kicking someone out is not FI, if the person has a reasonable means
of escape it is not FI
- Causing someone else to be arrested by false info – FI

Defenses:
o Consent
o Legal justification
o Shopkeeper’s privilege
o Detention for investigation
o Legal authority

Damages
o Nominal damages
o Economic damages
o Pain & suffering and emotional distress damages
o Does not require physical harm – humiliation & mental anguish
o Punitive damages
Trespass to Land
Elements:
1. Intentional
2. Tangible
- Invasion
- Intrusion or
- Entry
3. Onto the
- LAND owned by Plaintiff or
- LAND in which plaintiff has property interest

Intent
- Purpose to trespass satisfies intent
- Intention to be on the land is also sufficient

Entry can be:

- Personal entry (entry of the person)
- Causing objects to enter (landing a hang glider)

Intrusion
- Refusal to leave can constitute intrusion
- Exceeding the extent of a right to enter granted by the owner
o Exceeding the time or the extent of area allowed

Notes:
- Land include underground + reasonable height above
- Intangible violations of the property interests are the tort of nuisance
o Nuisance is said to be the violation of the enjoyment of one’s property

Damages:
- Nominal damages or injunction or punitive
- Loss in value OR cost to repair (whatever is less)
o Can only claim restoration if you have a reason to restore it

Defenses:
- Consent
- Necessity
o Public necessity – to avoid public disaster
o Private necessity – to avoid loss of life or property
- Limited: defendant must pay actual damages caused to plaintiff by
the entry, but no punitive damages
Intentional Torts against Personal Property
- Conversion and Trespass to chattel
- Personal property is all property not connected to land
o Cars, trucks, equipment
o Jewelry, clothing, books, art
- Traditionally limited to tangible property
o Today might extend to some intangible property
- Stocks and bonds, domain name, biological matter

Trespass to Chattel
Elements:
1. Intentional
2. Intermeddling with the property of another
3. Causes damages (important!)
a. Must show actual physical damage/item is worth less

Conversion (Trover)
Elements:
1. Actor intentionally
2. Exercises substantial dominion
3. Over the property of another

Substantial Dominion
- Significant control over the property of another as if making it your own
o Includes theft and destruction
- Any serious interference, looks to
o Extent and duration of control
o Intent to assert a right to the property
o Any good faith
o Harm to the object
o Expense or inconvenience caused

Serial converter
- A person receiving goods that were converted is also a converter
o Purchase of stolen goods
o UCC provides protection for serial converter; Where goods are entrusted
with a merchant who deals in goods of that kind and purchaser obtains
goods from that merchant (e.g. buying a stolen bike from a bike shop)

Damages
- Value at time of conversion
 - Highest value over a reasonable time
- Return of the item (replevin)

Intentional Infliction of Emotional Distress

Elements:
1. Extreme and outrageous conduct
2. Intended to cause (or disregard of substantial probability of causing) severe
emotional distress
3. Causing
4. Severe emotional distress

Extreme and Outrageous

- To go beyond all possible bounds of decency, atrocious, utterly intolerable in a
civilized society
- Typically viewed as a question of law for the judge
- Common fact pattern to determine outrageous conduct
o Conduct that is repeated or carried out over a period of time
o Conduct that is an abuse of power by a person with some authority over
the plaintiff OR
o Conduct that is directed at a person known to be especially vulnerable
- Exceptions:
o Terrorism is sufficiently extreme and outrageous and is an exception to
the need of presence
o Failed wedding photos
o Botched mortuary services

Recovery
- Immediate family can recover
- Third party recover is barred unless 3 rd party is actually a witness
Defenses to Intentional Torts
Self Defense
Elements/Privileged to use when:
1. Reasonably believe
2. Attack is imminent
3. Use reasonable force to repel

Notes:
- Can’t be initial aggressor generally, but it can be factored into proportionally
- Reasonable force must be used
o You can only use the amount and type of force that is reasonably necessary
to protect yourself against the threat
o Can only use deadly force in threat of death, serious bodily harm, ravishment
- Provocation/words alone is not generally sufficient for self-defense
- Always an affirmative defense – defendant has burden of proof
- ‘Stand Your Ground’ – no duty to retreat

Defense of Property
Elements/Privileged to use when
1. Reasonable force
2. To prevent or terminate
3. Another person’s intrusion on land or chattel

Notes:
- Use of force must be appropriate to the defense of property
o You may not use deadly force to protect property EXCEPT if intrusion
threatens death or serious bodily harm to users of property

Defense of Chattel
Elements
1. Reasonable force (not deadly) used to
2. Recapture chattel tortiously taken and about to be removed from the
premises
3. Where the actor has a right to it
4. Soon after taken (fresh pursuit)
5. After a demand for return

Nevada Shopkeeper’s Privilege

- Good cause for detention
- Reasonable length of time
- Manner of detention is reasonable
- Purpose of detaining appropriate
 o To inform police
o To recover merchandise

Discipline
- Parents/temp guardians can use discipline if
o Force is reasonable
o Related to the purpose of safeguarding or promoting welfare of minor
o Not a substantial risk of causing physical harm, gross degradation, or severe
distress

Consent
Elements
1. Plaintiff had capacity to understand what they were consenting to and
circumstances were substantially similar to those initially consented to
2. Must have capacity
a. Minors: lack capacity except for touching appropriate for their age
i. Parents can sometimes consent for children
b. Limited mental capacity – can’t understand nature of their act
c. Alcohol or drug influenced might lack consent
d. Consent through fraud is invalid
e. Consent negated through power relationship (prison or mental
institution)
i. Employees, teachers, etc. make us suspicious
3. Give express consent or implied (custom and usage or conduct)

Notes:
- This excuse also works for defamation or privacy
- People with communicable diseases must disclose that
- Conduct cannot exceed the boundaries of consent
o E.g. surgery without consent is battery

Public Necessity
Privileged to use when acting:
1. In good faith
2. To respond to necessity
3. On behalf of the public interest

Notes:
- Not liable for damage done if in the public interest in response to an emergency

Private Necessity
- Similar to above but this is acting on behalf of a limited number of people, so WILL
be liable for any damage done
- Not a tortfeasor when acting out of necessity
- If private property is destroyed, may be reasonable, but compensation is still
required
Negligence
Elements of Negligence
1. Duty
2. Breach
3. Proximate Cause (foreseeability)
4. Cause in Fact (but-for test)
5. Damages

1. Duty
- A duty of reasonable care under the circumstances is:
o Perceiving the risks a reasonably prudent person would anticipate
o Taking the steps a reasonably prudent person would take in response to
those risks
- Duty of reasonable care under the circumstances is created when
o If you cause the harm, even innocently, and know or should have known
o You have created an on-going or continuous risk of harm, you have a duty to
warn or rescue
o Undertaking – if you start a rescue, you adopt a duty of reasonable care
o Special relationships:
- Common carrier/passenger
- Innkeeper/guest
- Restaurant/customers
- Business/customers (possessor of land/invitee)
- Employer/employee
- School/student
- Landlord/tenant
- Custodian/those in custody
- Patient/provider

Duty Alterations
1. Physical disability: standard of care as a reasonable person with that disability
2. Mental disability: standard of care as someone without a mental disability
3. Profession or Trade: held to standard of care of someone with that knowledge
4. Minors: held to reasonable care of child of similar age, intelligence, and experience
UNLESS engaging in an adult activity
a. Children under 4 – not able to commit negligence
5. Intoxicate: standard of care as a sober person

Duty to Rescue
- If an actor created the harm and caused injury, even accidentally or without
negligence, they owe a duty to the injured person
Duty for Landowners
a. Invitee
i. Public invitee – someone who is on premises as a member of the general
public only if they are there for the reason the premise is open to the
public for
ii. Reasonable care to search for and anticipate dangerous conditions, warn
of them, and/or make them safe
b. Licensee – social guest
i. Someone who is on the premise w/ the landowner’s permission, but for
their own benefit
1. Limited entry to property
ii. Duty is same as trespasser
1. No willful, wanton, or reckless misconduct and ordinary care to
prevent injury if discovered in peril and warn of latent peril
c. Trespassers
i. On property without consent, no duty of reasonable care. No duty to
rescue.
1. No willful, wanton, or reckless misconduct
2. Exceptions to the unknown trespasser
a. Dangerous condition involving risk of death or grievous
bodily harm
b. Landowner created or maintains the condition
c. Duty is only to warn of the existence of the condition
3. Exceptions to known trespasser
a. If the trespassers are frequent (children crossing yard
every morning), you need to make efforts (like signs) to
warn them
b. Dangerous condition
i. landowner has a duty to warn if the landowner
knows the trespasser will go in the zone of danger
4. Attractive Nuisance
a. Features on property that could attract kids and are
dangerous. Duty to make safe unless that ruins its use

Firefighter’s Rule
- When firefighters/police are injured on the job, they can’t sue the person who
caused the negligence
- Exceptions:
o Injury occurred after the person who caused the injury knew about the
presence of emergency personnel
o Third party whose intervening negligence or intentional conduct causes
injury to officer
o Was intended to injure officers
 o Intended to injure emergency personnel
o Violated a statute, ordinance, or regulation that was intended to protect the
peace
o Arson
o Willful, wanton, or reckless behavior
o Injury is outside the emergency that the officer is responding to

Public Duty Doctrine

- Police and firefighters have a duty to the community, not to individuals
- There is only a duty to an individual if there is a direct promise to the person
- Reasonable reliance can make a general duty a specific duty (crossing guards every
morning caused mom to rely there would be one)

Misfeasance
- If you do an affirmative act, you owe a duty to act with reasonable care

Nonfeasance
- No duty to take steps to protect unless undertaking, special relationship, actions as a
promise or undertaking, contracts
- No duty in mere words encouraging others to act

Contracts & Duty

- Contractual relationship may create a duty
o Cannot recover if losses are purely economic
- Damages can include emotional distress and punitive damages

Duty to Protect from Third Persons

- Generally no obligation to protect from third parties unless know of foreseeability of
threat
- Prior similar incidents test
o Foreseeability is established by evidence of previous crimes on or near the
premises
- Past history of criminal conduct will put landowner on notice of
future risk
- Totality of circumstances test
o Takes additional factors into account, such as the nature, condition, location
of the land, and any other relevant factual circumstances bearing on
foreseeability
- Therapists
o Have a duty to warn if there is a specific threat
- Employers
 o Generally vicariously liable for the torts of their employees committed within
the scope of employment
o Can also be held liable for negligently hiring or retaining a dangerous person
who later harms the plaintiff

Negligence Per Se
Elements
1. Statute defines standard of conduct
a. Statute = Duty
b. Violation = Breach
2. Meant to prevent the type of harm
3. Plaintiff in class meant to protect
4. Violation must have been proximate cause of injury

Notes:
- Negligent as a matter of law
- Violation must have been the proximate cause
- Emergency Vehicles – can be held liable if they do not drive with due regard for
safety
- Court borrow statute to define duty
- Exceptions
o Violation is reasonable in light of actor’s age (minor) or physical disability
o Actor used reasonable care in trying to comply
o Actor did not know/should not have known that the statute applied
o Compliance would give greater risk of harm to the actor or others
o Impossibility

2. Breach
- Defendant engages in conduct that a reasonable person knows put other people at
unreasonable risk of harm
- To show a breach in duty, the plaintiff would need to prove that the risk was
reasonable to foresee and that reasonable steps should have been taken to mitigate
it
- Can you show what the breaching activity was? If not, you might want to use res ipsa

Notes:
- Slip and fall
 o For property owner to be liable, plaintiff must prove all negligence elements
AND the premises owner either created a dangerous condition or had actual
or constructive knowledge of a dangerous condition
- Cannot use store manual to determine standard of care, but it can be used as a
guide or evidence of foreseeable standard of care

Res Ipsa Loquitur

- The thing speaks for itself
- Accident doesn’t happen without negligence
- Defendant is in exclusive control
- Plaintiff is not at fault
- There is no other explanation for plaintiff’s injuries besides negligence
- Notes
o Plaintiff cannot prove how defendant breached his duty, but the mere
occurrence of the accident is itself circumstantial evidence of breach
o Burden is on D to explain the accident
o Still need to prove causation and damages

3. Proximate Cause (foreseeability)

- Legal cause, jury question
- Within scope of reasonably foreseeable risk of defendant’s conduct
- Was this harm one that a reasonable person would have foreseen?

Notes:
- Rescue doctrine
o Danger invites rescue. A reasonable person would foresee rescue
o Tortfeasor is liable for injury caused to a rescuer while they were attempting
to rescue a victim that was injured from the tortfeasors negligence
o Cannot be held contributory negligence when conducting the rescue unless
the rescuer acted recklessly
- Thin-skull rule
o Does not make the tortfeasor liable for preexisting condition itself
o Calls for liability for any aggravation of that original condition, even where
aggravation was unforeseeable
- Intervening cause
o Intervening act does not affect liability unless it is unforeseeable
(superseding cause)
o Criminal acts are foreseeable
o Liability turns upon whether the intervening act is a normal or foreseeable
consequence of the situation created by the defendant’s negligence
- Superseding cause
 o Intervening force that is not a foreseeable result of the defendant’s conduct;
it operates upon, but does not flow from the defendant’s act of negligence
- Alcohol
o Proximate cause of drunk person’s harm is the person drinking it, NOT who
gave it to them

4. Cause in Fact (but-for test)

- Factual cause
- But-for test
- Harm caused by defendant
o Plaintiff must prove that defendant’s actions were cause of injury
- Had defendant not acted negligently, plaintiff’s injuries would not have resulted
- “but-for the defendant’s conduct, would the harm have occurred?”

5. Damages
- Requires proof of actual harm

Defenses to Negligence
Comparative Fault
- Plaintiff’s recovery is reduced by the amount of fault attributed to plaintiff’s
negligence

Assumption of Risk
1. Express Assumption of Risk
a. Waiver/contract
b. Absolute bar of recovery
2. Primary implied assumption of risk
a. Includes plaintiff’s disregarding of clear risk (danger is plainly obvious)
b. No duty -> amounts to comparative fault
c. E.g.
i. Sports (within scope/practice of the game)
ii. Participants in recreational activities (horseback riding, ATV riding)
iii. Baseball stadiums
d. Bars recovery
3. Secondary implied assumption of risk
a. Comparative fault
b. Includes plaintiff’s unreasonably disregarding a risk that a reasonable
person should have realized
 c. Typically analyzed under theories of comparative fault

Immunities
1. Sovereign immunities
a. State and federal government cannot be sued
b. City, counties, universities are likely part of the sovereign and covered in STATE
courts
c. Notes:
i. Government employees cannot be sued for discretionary acts (should we
put in a stoplight)
ii. Doesn’t apply to actions outside of functions of sovereign (cop sexually
harassing someone off duty)
2. Personal immunities
a. Legislators
b. Judges
c. Prosecutors
d. Qualified immunity for officers
e. Note:
i. Only within the capacity of their role

Statute of Limitations
- Nevada Statutes
o 3 years – conversion, fraud/mistake, trespass
o 2 years – other intentional torts, negligence, strict liability, professional
malpractice (not doctors)
o 1 year – survival actions

Federal Preemption
- Congress can preempt state law by statute, passing laws that conflict, or occupying
the field

Professional Negligence
Medical Malpractice
- Duty of care owed
o a physician must exercise that degree of care, skill, and proficiency exercised
by reasonably careful, skillful, and prudent practitioners in the same class to
which they belong, acting under the same or similar circumstances.
- Expert testimony is required
- Specialists are held to the standard of care for their specialties
- Medical battery
o If doctor doesn’t obtain consent at all
 o Operation on wrong knee – negligence
o Operation on completely different area of body – battery
- Emergency exception
o Medical emergency exists
o Treatment is required to protect patient’s health
o Impossible or impractical to obtain consent
o No reason to believe patient would decline treatment
- Res Ipsa
o May be applied in medical situations
o Expert testimony is NOT required
o Allowed when
- Foreign substance left in body
- Burns on body from treatment
- Injury on body not being treated

Special Types of Negligent Harm

Negligent Infliction of Emotional Distress

Elements:
1. D’s conduct places P in danger of immediate harm
2. Emotional harm results

Notes:
- If there was touching, can clearly recover
- Dillon Test
o Used for bystanders
o Three factors
- P was located near the scene of the accident
- Shock resulted from a direct emotional impact on the P from
observance
- Closely related

Toxic Exposure – fear of future harm

- May be recovered only if plaintiff proves
o Result of D’s breach of duty to P exposed P to toxic substance which
threatens cancer
o P’s fear stems from knowledge that it is more likely than not the plaintiff will
develop cancer

Prenatal harms
- A mother does not owe her fetus in utero a duty of care
 - A plaintiff would have a cause of action for prenatal injuries caused by a third-party
o Can claim for injury if they are born alive or born dead and viable at the time
of injury

Wrongful Birth
- A case where a doctor fails to diagnose genetic difficulty, with resulting physical
harm to fetus and economic and emotional harm to parents
o Parents can only recover extraordinary medical damages
o “but for doctor’s negligence, they would have aborted”
- Simply a medical malpractice action where negligence rules apply

Wrongful Conception
- Doctor failed to prevent conception because they negligent performed a failed
sterilization procedure
o Birth of a child is NOT a harm – no negligence
- “a child is always a blessing”
o Most courts allow recovery for mother’s pain in pregnancy and medical costs
- Deny recover for cost of rearing a healthy child
o Most courts deny recovery for IIED/NIED – a child is a blessing

Wrongful life
- A child cannot recover damages for being born

Wrongful death
- Survival statutes: cause of action can survive death of plaintiff or defendant for 1
year post-death
o Deceased would get medical bills
o Survivors would get: pain and suffering, loss of income, loss of consortium
- Wrongful death statutes
o Intended to compensate survivors of the deceased for the losses they have
sustained as a result of a wrongful killing
o Can be brought by
- Husband/wife
- Children
- Mother/father
- Grandparent
- Personal representative
- Person who had primary physical custody before wrongful act
Strict Liability
Elements
1. Absolute duty to make safe
2. Actual and proximate cause of injury
3. Damage

Note:
- Liability without proof of the defendant’s fault. Liability is imposed even without
proof that the defendant acted intentionally or negligently
- Injuries caused by animals
o Cows/barnyard
- Owner of livestock that intrude on another person’s land is subject to
strict liability for physical harm caused by the intrusion
o Dangerous animals
- If owner knows or has reason to know of the animal’s abnormally
dangerous tendencies and if the harm ensues from that dangerous
tendency
 One bite rule – if the animal has bit once, then subsequent
bites become liable
o wild animals
- liability imposed for injuries connected with wild animals that are wild
by nature (tigers)
o dogs and cats don’t count unless they are inherently dangerous
- land
o noxious substances that suddenly escape
o invasion is a nuisance if the gravity of the harm to the plaintiff outweighs
utility of the defendant’s conduct
- abnormally dangerous activity
o two part test:
- activity must create a foreseeable and highly significant risk of
physical harm even when reasonable care is exercised by all actors
- activity is not one of common usage
o examples
- blasting rock
- testing rockets
- fireworks
- poison
- hazardous waste
Vicarious Liability/Respondeat Superior
Notes:
- Defendant is held liable for someone else’s tort, usually because of the defendant’s
special relationship with primary tortfeasor
o Most common: employer/employee relationship
- Person held liable is only liable to the same extent as the primary tortfeasor
- Employer can sue employee for indemnification
- Vicarious liability applies even to injuries to employer’s person or property
- Relationship exists when
o Employer + employee
o Borrowed servant: depends on control at the time

Respondeat Superior: employers are strictly liable for the torts of their employees
acting in the course of employment
o “Let the boss answer”

Scope of Employment
o Falls within scope of employment when
- When it is required by or incidental to the employee’s duties
- Is reasonably foreseeable in light of the employer’s business
o Employer can be held liable even when employee is doing something for
their comfort, convenience, welfare at work
- As long as the employee is either combining her own business with
that of the employer or attending to both at the same time
o If an employee substantially deviates from duties for personal purposes, the
employer is not vicariously liable for the employee’s actions
- Tort must arise from the work
o Causal Nexus
- Incident leading to the injury must be an outgrowth of the
employment
- Must be inherent to the working environment and typical to
employer’s business

Temporary Deviations
o Frolic: substantial departure. A personal mission and employer can’t be held
liable.
o Detour: trivial departures from the job and employer can be held liable
(coffee, cigarette breaks)
Borrowed Employees
o Liability depends upon which employer is in the better position to take
measures to prevent the injury suffered, looking at which employer has a
right to control the employee’s conduct

Coming and Going Rule

o Employee going to and from work is considered outside the scope of
employment
o Exceptions
- Where the trip involves an incidental benefit to the employer
- Employee is on call
- Employee drives work vehicle to and from work
- Employee is instructed to carry out some job related errand during
the commute
- Employee is compensated for travel time

Intentional Torts
o Don’t usually give rise to vicarious liability of employer
o Vicarious liability might be possible where motive to serve the employer’s
interests is highly relevant
- E.g. bouncer monitoring lines at clubs
o Sexual assault could count as vicarious liability if assaulter was acting in
capacity or help of employer
- E.g. worker at conference after-party assaults woman

Independent contractor
o A person who hires an independent contract to perform work is usually not
vicariously liable for the torts committed by the independent contractor
o Exceptions
- Where the landowner retains control of the manner and means of
doing the work
- Whether they engage an incompetent contractor (alcohol abuser or
anger management)
- Whether the activity is inherently dangerous
Worker’s Compensation
- A defense to all tort actions we’ve discussed
- Injury must arise out of the course of employment
o Requires that causal connection exists between the employment conditions
and the resulting injury
o Injury must emanate from a peculiar danger or risk inherent to the nature of
employment
o Injury occurs within the period of the employment, at the place where the
employee reasonably may be, and while the employee is fulfilling work
duties or engaged in doing something incidental thereto
- Intentional torts might take you out of worker’s comp
- Notes:
o Heart attack standard – a heart attack is compensable if it is induced by
unexpected strain or overexertion in performance of employment
o Last injurious exposure – if employee has worked for many different
employers, it may be no single exposure with any one employer was in fact
sufficient to cause disease
o Horseplay – does not preclude compensation. Question is how much did
horseplay deviate from employment
Products liability
Product Liability
- Deals with liabilities of those who manufacture or distribute harm-causing products
- Manufacturers, distributors, wholesalers, and retailers all included.
o Can sue anyone in chain of commerce.
- If product defect results in purely economic harm, there is no strict liability because
remedy lies in contracts
- Only concerns sellers who are in the regular business of selling the product
o Selling your personal car does not make you a distributor
o Being an etsy seller does!

Manufacturing Defect
Elements
o Product is defective
o Defective when it left the manufacturer
o Defect was proximate cause of plaintiff’s injury

Notes:
- Physical departure from the product’s intended design that makes it unreasonably
dangerous
- Food: harm causing ingredients in food product is a defect if a reasonable consumer
would not expect food product to contain that ingredient (bone in chicken
enchiladas)
- Consumer expectation test
o Whether the product is dangerous to an extent beyond that which would be
contemplated by the ordinary consumer who purchases it, with the ordinary
knowledge common to the community as to its characteristics

Design Defect
Elements
o Defect in design
o Manufactured according to design
o Design cause injury

Notes:
- Found unreasonably dangerous if dangerous beyond expectations of ordinary
consumer when used in an intended or reasonably foreseeable manner
- Crashworthiness doctrine
o Manufacturers are liable for harms caused by defective products that are put
to foreseeable uses even if unintended by the manufacturer
o Allows a plaintiff to sue for injuries that were enhanced by the products
defective design
 o E.g. like airbag failing to deploy. Airbag defect didn’t cause the accident, but
it caused enhanced injury
- Risk-utility balancing test
o Product design is in defective condition if
- It is more dangerous than an ordinary consumer would expect when
used in an intended or reasonably foreseeable manner
OR
- If the benefits of the challenged design do not outweigh the risk
inherent in such design
- Some products, knives and bullets, must by their very nature be dangerous in order
to be functional
o A product’s defect is related to its condition, not is intrinsic function

Information/Warning Defects
Elements
- Not warning against foreseeable use/misuse can establish a defect

Three ways warnings can be considered reasonable:

1. Contains information about the existence of any reasonably foreseeable risk
2. Explains nature and scope of any foreseeable risk
3. Explains how the user can minimize or avoid risk

Notes:
- Warnings – look at what is foreseeable uses and then warn consumers not to do
them
- Duty to warn is not necessarily gone merely because a danger is clear
o Obviousness does not substitute for the warning. Meat grinder case.
- Post-sale warnings
o Duty arises only when the defendant was negligent in the first place or when
the product was defective from the start
o Obliged to give a post-sale warning when a reasonable person would do so.
When:
- Knows or reasonably should know product poses a substantial risk
- Those who need warning can be identified and effectively
communicated
- Risk of harm outweighs the burden of giving a warning
- Misuse
o Manufacturer must design a product in light of known foreseeable misuses
o Misuse could be used to reduce recovery (comparative fault)
- Learned intermediary rule
o Re: prescription drugs – manufacturer must provide warnings only to doctor
who might prescribe, not directly to patient. Doctor is then said to be a
“learned intermediary”
 - Sophisticate user
o Users who are aware of product’s dangers, such as members of a trade or
profession in which knowledge is widespread

Products Liability Defenses

- Comparative fault
o Secondary implied assumption of risk
- Misuse
- Federal preemption
- Military contractor defense
o Liability for design defects in military equipment cannot be imposed when
- US approved reasonably precise specs
- Equipment conformed to those specs
- Supplier warned the US about the dangers in the use of the
equipment

Reasonable Alternative Design

Elements of RAD
1. Economically and technologically feasible
2. Would have saved this person from injury
3. Wouldn’t infringe on effectiveness of product
4. Wouldn’t make it less safe for others
Harmful Communication Torts
Defamation
Elements
1. Publication that was
a. Must be published to a third person
2. False and defamatory
3. Of and concerning the plaintiff
a. Must be identifiable by the reader, listener, or viewer
4. Damage to reputation

Notes:
- Publication must carry some negative implication to be defamatory
o Hatred, ridicule, or contempt, or something that lowers esteem for plaintiff
o Publication can be speaking to a group of people
- D can use truth as an affirmative defense
- For libel – written publication
o Injury will be presumed
- For slander – spoken publication
o will need to prove a money injury
- Name calling is not enough
- Publication is communication to a 3rd person, out loud or in public, to someone who
can understand it
- Repeaters are publishers and can be held liable
- Burden of proof false to plaintiff to prove defamatory statement is false

Slander per se
- Four special categories that may raise a slander per se claim
1. Accusing of criminal conduct
2. Loathsome disease
3. Incompatible with profession or occupation
4. Sexual misconduct
Matters of public Interest
- For matters of public interest, the plaintiff must show the statement was false and
that the defendant was at fault (negligent, reckless, or intentional tortious conduct)
- Public official
o Elected officials, appointed officials, government officials
- Does not mean every public employee, only those whose positions
would invite public scrutiny and discussion of the person holding it
o Cannot recover unless
- False statement that regarded them
- Statement was defamatory
- Made with actual malice
 Knowledge that it was false
 Made with reckless disregard to truth/falsity
- Public figures
o Those who achieve such pervasive notoriety that they should be treated as
public figures for all, or at least for most, purposes
o Those who thrust themselves into the middle of public controversy and
thereby become known - ****influencers*****
o Those who were thrust into public controversy through no action or fault of
their own. Court is usually less stringent with actual malice here
- Private Figures
o Do not have to prove actual malice, can recover by showing negligence
- If you can show malice, you should. That makes it intentional.

Defenses for Defamation

- Consent
- Absolute and qualified privileges
o Communication between spouses
o Legislative, judicial, litigation, and executive privilege
- Anything said at trial is immune, even if you’re lying
o Writing a reference
o To report a crime
o To report on a public meeting/doc/activity and fair comment
Malicious Prosecution
Elements:
- Prosecuted or charged
- Defendant is person who initiated prosecution
- The defendant acted maliciously (improper purpose)
- Defendant acted without probable cause
- In some jurisdictions, prosecution must have ended in plaintiff’s favor

Defenses
- Litigation immunities
- Guilt of plaintiff

Malicious Civil Litigation

Elements
o Civil action brought without probable cause
o Defendant acted with malice
o Action is terminated in the favor of the plaintiff
o Show special injury
- Hiring attorneys, embarrassed, property ceased, employer fires you

Abuse of Process
- Proof of alternative motive is required
- A willful act in the use of the process, not proper in the regular conduct of
proceedings
Privacy Cases
Intrusive Invasions
Elements:
1. Intrusion on the solitude of another
2. Which would be highly offensive to a reasonable person

Notes:
- Plaintiff has reasonable expectation to seclusion or solitude, and the defendant
intentionally invades that right in a way that would be highly offensive to a
reasonable person
- Intrusion by electronic recording devices/hidden cameras
- Continuous conduct would be IIED

Commercial Appropriation
Elements:
1. Use of another’s name for the advantage of another
2. Violation of a privacy right/publicity right
3. Controlling the value of another’s person
a. Vocal sounds, likeness
4. Taking someone else’s image for your pecuniary gain
a. Needs to be monetized
b. Use of a plaintiff’s identity in noncommercial work (stories, news,
biographies) is fully permissible
i. Free speech

False Light (more recently, called libel)

- A widely disseminated publication puts a person in a negative false light that would
be highly offensive to a reasonable person
- Public figures/matters of public interest, you must have
o Malice or knowing or recklessly creating a false impression (hard to prove)
- Deep fake videos, photoshop

Public revelation of private facts

- Defendant might publish true statements about the plaintiff on matters utterly
private
- E.g. Charlie Sheen’s HIV status; nudes

KEY:
Defamation = People
Commercial Disparagement = Business
 Slander to title = property

Commercially Harmful Impressions

Commercial Disparagement
Elements:
1. D made a false statement about P that caused pecuniary loss
2. Malice – D knew it was false or acted in reckless disregard

Slander of Title
Elements
1. D has interest in property
2. D publishes words that were false
3. Malice
4. P suffered pecuniary loss or injury

Interference with Contract

- Breach of contract – intentional action that causes a 3rd person to breach contract
with plaintiff
- Interference with contractual relations
o Interferes with someone’s business prospects
o E.g. pilot tells passengers not to use that taxi company
- Privileges
o Interference of marriage
o To compete for business in good faith
o Protect their own business interest
Misrepresentation
Fraud
- False statement that the speaker knows is false or is made with reckless disregard
for the truth that induces a person to act

Intentional misrepresentation causing physical (and emotional harm)

Elements
1. A material misrepresentation or omission of fact
2. D knows it’s false
3. D failed to recognize diligence or expertise
4. Actual and justifiable reliance
5. Damages caused by reasonable reliance

Notes:
- Intentional misrepresentation causing economic harm occurs when D makes a
statement they know is false (or reckless disregard) and it induces a person to act
- Damages can include benefit of the bargain, out of pocket, or punitive

Negligent Misrepresentation Causing harm

Elements:
1. A false and material representation
2. Speaker knows it’s false
3. Speaker intends the hearer to act on it and rely on it
4. Hearer did not know it was false
5. Here relied
6. There was consequent and proximate injury

Duty to Disclose
- Silence counts as misrepresentation where there is a duty to disclose
- Duty exists where
o Seller actively conceals defects or prevents investigation
o Seller tells half-truths or makes ambiguous statements where intent is to
create a false impression and he does so
o Seller is in fiduciary relationship with buyer
o Facts are peculiarly and exclusively within the knowledge of one party
o Special knowledge where seller has knowledge the buyer is about to
- Enter deal under mistake as to facts basic to transaction AND
- Customs of the trade or other circumstances would suggest
disclosure