ENLISH FOR LAW COMPLETE OUTLINE

I. Intentional Torts
A. General Points
1. ALL intentional torts require INTENT and CAUSATION
2. P must prove by preponderance of evidence
3. Hypersensitivity—P's hypersensitivity should NOT be taken into account (irrelevant)
a) Always analyze tort based on person of average sensitivity (i.e., would a "normal" person
be offended/affected?)
4. Incapacity
a) There is NO "incapacity" defense
b) ALL persons are capable of committing intentional torts (e.g., children)
c) Applies to ANY incapacity
B. Intentional Torts to Persons
1. Battery (two elements)
a) Harmful or offensive contact (i.e., unpermitted by "normal person")
b) With P's "person"
(1) NOT limited to body—includes anything that P might be holding
2. Assault (two elements)
a) An act by D creating a reasonable apprehension
(1) Hypersensitivity NOT taking into consideration
(2) P must actually be aware/have knowledge of potential contact
b) Of immediate harmful or offensive contact to P's person
(1) Requires some accompanying physical conduct
(2) Words alone are NOT enough, BUT words may negate threat
3. False Imprisonment (two elements)
a) An act or omission by D that confines or restrains P
(1) P must actually be aware/have knowledge of restraint OR suffer a harm
(2) Immediate threats ARE sufficient—Moral pressure/future threats are NOT sufficient
(3) Omission qualifies if there is a pre-existing duty to help/permit P move about
(4) Period of confinement is irrelevant—There is no minimum time requirement
b) To a bounded area
(1) Requires that freedom of movement be restrained in ALL directions
(2) There must be no reasonable means of escape known to P
(3) Applies ONLY to confinement in a space—Exclusion is NOT actionable
4. Intentional Infliction of Emotional Distress (two elements)
a) D engages in extreme and outrageous conduct
(1) Conduct that "transcends all bounds of decency" tolerated in a civilized society
(2) Can be intentional OR reckless
(3) Mere insults are NEVER outrageous
(4) Conduct that is not normally outrageous may become so if (factors to consider):
(a) Conduct occurs in public (rather than private) (i.e., public humiliation)
(b) It is continuous or repetitive in nature (i.e., ongoing)
(c) It is directed towards a member of a "fragile class"
(i) Very young child
(ii) Elderly person
(iii) Pregnant woman
(d) D is a common carrier or innkeeper—in which case "gross insults" are sufficient
(e) P's hypersensitivity is NOT taken into account, UNLESS D knew in advance
b) Which causes severe emotional distress—must be severe (requires proof)
c) The Bystander Case
(1) Occurs when D intentionally causes physical harm to third person and P suffers
severe emotional as a result
(2) P may recover by showing elements above OR that:

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 (a) P was present when the injury occurred,
(b) She is a close relative of the injured person, AND
(c) D knew of the facts above

C. Intentional Torts to Property

1. Trespass to Land (two elements)
a) Physical invasion
(1) Requires physical entry, including causing objects to enter (e.g., spraying water)
(2) Non-physical invasion is NOT sufficient (e.g., odors, noise, light, vibrations)
(3) Requires intent to enter, BUT NOT intent to "trespass" (obliviousness is NO defense)
(4) Examples of where intent is lacking:
(a) Sleepwalking
(b) Falling onto land
(c) Uncontrollable horse gallops onto land
(d) Stray vehicles (plane crash)
b) Of P's land—includes surface, as well as reasonable airspace/subterranean space
2. Trespass to Chattels/Conversion (two elements)
a) Interference with P's right of possession
(1) Requires either taking away OR causing damage
(2) Use Trespass IF damage is modest, slight, small or trivial—P recovers amount of
damage
(3) Use Conversion IF interference is extensive—P may demand full value (think of as a
forced sale—"You break it, you bought it")
b) In personal property
D. Affirmative Defenses to Intentional Torts
1. Consent
a) Requires legal capacity to give consent
b) Express Consent—Express permission
(1) VOID if procured by fraud or duress
(2) Failure to disclose STD—consent NOT valid b/c of fraudulent omission (battery)
c) Implied Consent:
(1) Apparent Consent Implied from Custom or Usage—
(a) Participation in body-contact sport (e.g., football)
(b) Ordinary incidental contact (e.g., subway)
(c) Reasonable interpretation of P's conduct (e.g., kiss while on date)
(d) Must be reasonable contact (judged by objective standard, NOT what P was
thinking)
(2) Consent Implied by Law—Action is necessary to rescue a person
d) Conduct must not exceed scope of consent given
2. Self-defense, Defense of Others, Defense of Property
a) Timing—Conduct triggering reaction must be in progress OR imminent—NO revenge!!
b) Accuracy—Need only have a reasonable belief of threat (okay to be wrong, IF
reasonable)
c) Rule of Proportionate Force—
(1) Must limit oneself to force necessary under the circumstances (must be reasonable)
(2) CANNOT escalate force
(3) Can use deadly force ONLY if necessary where human life is at risk
(4) Can NEVER use deadly force solely to protect property
d) Retreat—Under common law, there is NO duty to retreat (may stand your ground)
3. Necessity
a) This is a defense ONLY to Trespass to Land, Trespass to Chattels and Conversion
b) Public Necessity
(1) Defined—Trespass during an emergency to protect the community as a whole or
some significant group of people (e.g., shooting a rabid dog chasing group of
children) (i.e., D is acting as a "Good Samaritan")

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 (2) This is an absolute defense—D pays nothing
c) Private Necessity
(1) Defined—Trespass during an emergency to preserve D's personal interests
(2) D must pay for any harm caused, BUT NEVER punitive or nominal damages
(3) P must allow D to take refuge for as long as the emergency continues (i.e., cannot
force D back into danger)
4. Shopkeeper's Privilege
a) Shopkeeper may detain suspected shoplifter w/o suffering False Imprisonment claim IF:
(1) Reasonable suspicion,
(2) Detention is carried out by reasonable means, AND
(3) Reasonable amount of time (i.e., only as long as necessary to investigate)
II. Harm to Economic and Dignitary Interests
A. Defamation (Common Law)
1. Elements (three)
a) Defamatory statement "of or concerning" P;
(1) Defined—Statement that tends to harm reputation
(2) Requires an alleged or purported statement of fact—Listener likely to believe
(a) Mere insults/name calling NOT enough—Listener has no reason to believe
(b) Impossible to defame a dead person
b) Publication thereof by D to a third person;
(1) Must be revealed to at least one third person
(2) Statements b/n D and P do not qualify
(3) Need not be intentional—negligent, inadvertent or careless publication is enough
c) Damages to P's reputation
(1) Libel—written or permanently memorialized (e.g., newspaper, photo, video tape)
(a) Damages are presumed (P need not prove damages element)
(2) Slander—spoken/oral defamation
(a) P must actually prove economic harm (lost job, lost contract, etc.—social or
emotional harm will NOT work), UNLESS:
(b) Slander per se—Damages are presumed (P need not prove damages element)
(i) Adversely reflects on conduct in a business or profession
(ii) Suffers from loathsome disease
(iii) Guilty of crime involving moral turpitude (embezzlement, sex crime)
(iv) Imputing woman is unchaste
B. Defamation (First Amendment)
1. Applies when the defamation involves a matter of public concern
2. Elements—In addition to the three common law elements above, P must prove two additional
elements:
a) Falsity of the defamatory language
(1) P must affirmatively prove statement was false
(2) Truth is no longer a necessary/relevant defense
b) Fault on the part of D
(1) P must show D lacked reasonable belief (good faith basis) when statement uttered
(2) Public Figure—P must show intent or recklessness on part of D (i.e., malice)
(a) Public figure test applies to persons who have "achieved pervasive fame or
notoriety" OR have interjected themselves into public controversy
(3) Private Figure—P need only show negligence on part of D

C. Defenses to Defamation
1. Consent—Requires legal capacity; must be voluntary
2. Truth—D can show statement was factually accurate (does NOT apply to First Amendment
Defamation, b/c there P must prove falsity of statement—burden is on P)
3. Privilege
a) Absolute Privilege—Can never be lost; flows from status of speaker

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 (1) Statements made between spouses
(2) Statements made by government officials while acting within scope of official affairs
(a) Applies to all branches (judicial proceedings, legislators)
(b) Also covers lawyers during trials
b) Qualified Privilege—flows from circumstances, rather than status of speaker
(1) Socially useful occasion (e.g., letters of recommendation, conversations with police,
credit reports)—Policy: We want to encourage candor in certain instances
(2) Statement must be relevant to the occasion—privilege is lost if statement was not
within the scope of the privilege
(3) D must have a reasonable belief, at the time the statement was made, that the
statement was true (good faith)—privilege is lost if speaker acted with malice

D. Invasion of Right to Privacy

1. Four Types
a) Appropriation—Unauthorized use of P's name or picture for D's commercial
advantage
(1) Liability generally limited to use in packaging, advertisements or promotions
(2) Newsworthiness Exception—Mentioning person in books, magazines, TV is OKAY
b) Intrusion—Invasion of P's private affairs or seclusion in a way that is objectionable
to a reasonable person (e.g., eavesdropping, wiretapping, spying)
(1) P must have a reasonable expectation of privacy—public places don't count
c) False Light—Widespread dissemination of a major mischaracterization of P
(attributing to P views he does not hold or actions he did not take) that would be
objectionable to a reasonable person
(1) Does NOT require intent—Negligence, carelessness is actionable
(2) Defamation permits recovery for damages to reputation
(3) False Light permits recovery for damages to person's dignity
d) Public Disclosure—Widespread dissemination of private information about P that
would be objectionable to a reasonable person (e.g., financial, health care information)
(1) Information must actually be confidential—"Dual Life" issues are not actionable
(2) Newsworthiness Exception—Mentioning person in books, magazines, TV is OKAY
2. General Points
a) Rights generally do not survive death of person
b) Rights are personal and do not extend to corporations
3. Affirmative Defenses
a) Consent—Defeats any of the four types of privacy claims
b) Defamation Privileges—ONLY defenses to False Light and Public Disclosure (no
logical connection to the others)
E. Misrepresentation
1. Intentional Misrepresentation (Fraud & Deceit) (five elements)
a) Affirmative misstatement of a material fact
(1) Silence/omission is NOT sufficient
(2) But if you do speak, must speak truthfully
b) Scienter (intent)—D knew or believed statement was false
c) Intent to induce reliance
d) Actual and justifiable reliance (causation)
e) Damages—requires actual pecuniary loss/economic harm

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III. Negligence
A. Basic Elements (P must prove by a preponderance of evidence):
1. Duty to conform to a specific standard of conduct/care
2. Breach
3. Actual and proximate cause
4. Damages

B. Duty
1. Must ask two basic questions:
a) To whom did D owe a duty (was P foreseeable)?
b) What is the applicable standard of care?
2. Foreseeable/Unforeseeable Plaintiffs
a) ONLY foreseeable plaintiffs are owed a duty of care
b) NO duty is owed to unforeseeable victims
c) Cardozo View (Majority)—"Zone of Danger"
(1) Test—Must establish that reasonable person would have foreseen risk of injury to P
(2) Application—Look for folks nearby (if too far away, the are NOT foreseeable)
d) Rescuers are ALWAYS owed a duty of care (even if they are far away)—Policy favors
rescuers
3. Applicable Standard of Care
a) Basic Standard—Reasonably prudent person under similar circumstances
(1) Objective test—No special allowances for D's shortcomings (such as inexperience,
stupidity, insanity)
(2) Two exceptions to objective standard—D is held to/benefits from these:
(a) If D possesses superior knowledge (e.g., D knows of pothole in road)
(b) Physical characteristics are taken into account (e.g., blind, disabled, etc.)—
How would someone with similar characteristics have acted?
b) Particular Standards
(1) Children
(a) Very young children (under 4)—NOT capable of negligence
(b) Other children—Held to subjective standard of a child of like age, education,
intelligence and experience
(c) Adult Activities—Children engaging in adult activities may be held to "adult"
standard of care
(2) Professionals
(a) Professionals and persons with special occupational skills must possess the
knowledge and skill of a member of the profession or occupation in similar
communities (i.e., custom of the profession in that community, based on
empirical data)
(b) Specialists are held to a higher degree still—that of a specialist
(3) Common Carriers and Innkeepers
(a) Held to a very high standard of care—liable for slight negligence
(4) Owners/Occupiers of Land
(a) General Points
(i) With respect to activities being conducted on the land, owner generally has
a duty to exercise reasonable care under the circumstances (BUT no duty
is ever owed to undiscovered trespassers)
(ii) Owner is NEVER liable for open or obvious conditions—P expected to
care for himself
(iii) There are two ways owner can satisfy his duty to P (either works):
(a) Fix or repair the condition (i.e., eliminate the problem), OR
(b) Give a warning—unknown hazard becomes a known hazard
(b) Undiscovered Trespassers—NO duty owed (b/c unforeseeable)
(c) Discovered/Anticipated Trespassers (awareness)
(i) Must protect against:

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 (a)Concealed or hidden—no duty to protect against obvious conditions
(b)Artificial conditions—no duty to protect against natural conditions
(c)Known to landowner
(d)Involving risk of death or serious bodily harm—condition must be
highly dangerous (no duty for minor harms)
(d) Licensees ("business/social guests")
(i) Must protect against:
(a) All concealed or hidden conditions (artificial AND natural; any
unreasonable risk of harm)—no duty to protect against obvious
conditions
(b) Known to landowner—no duty to inspect
(e) Invitees ("customers"—land held open to the public)
(i) Must protect against:
(a) All concealed or hidden conditions (artificial AND natural; any
unreasonable risk of harm)—no duty to protect against obvious
conditions
(b) About which landowner knew or should have known—duty to make
reasonable inspections
(f) Persons Off Premises
(i) NO duty to protect against natural conditions
(ii) MUST protect against unreasonably dangerous artificial conditions or
structures abutting adjacent land
(g) Infant Trespassers—"Attractive Nuisance Doctrine"
(i) Owner must exercise reasonable care to protect against reasonably
foreseeable harm to children caused by artificial conditions
(ii) P must show:
(a) Dangerous condition
(b) About which owner knew or should have known
(c) Owner knows or should know children frequent the area
(d) Condition is likely to cause injury (i.e., dangerous b/c of child's inability to
appreciate risk)
(e) Expense of remedying situation is slight compared to magnitude of risk
c) Statutory Standards of Care
(1) Specific statutory duty may replace general common law duty if ("borrow statute"):
(a) Statute provides for criminal penalty
(b) Statute clearly defines standard of conduct
(c) Class of Persons—P is within the protected class, AND
(d) Class of Risk—Statute was designed to prevent type of harm suffered
(2) If established, gives rise to finding of "negligence per se"
(3) Excuses—Don't borrow statute when:
(a) Compliance with statute would be more dangerous than violation
(b) Compliance was impossible under the circumstances (e.g., ran red light due to
heart attack)
4. Affirmative Duties to Act
a) General Rule—NO duty to act
b) Exceptions—
(1) Assumption of duty—if you do act, must use reasonable care (e.g., rescue)
(2) D caused the peril—must rescue
(3) Special relationship—imposes duty to act, and act reasonably
(a) Family relationship
(b) Common carrier/innkeeper/shopkeeper—patron
(c) Landowner—invitee

5. Negligent Infliction of Emotional Distress

a) Elements (three):

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 (1) Negligent act by D
(2) Which exposes P to a foreseeable risk of physical injury or threat of impact
(a) Majority—requires "zone of danger" (i.e., "near miss")
(b) Modern Trend ("Bystander Theory")—allows recovery if:
(i) P and injured party were closely related (i.e., family members)
(ii) P was present at the scene
(iii) P observed the injury
(3) Some subsequent physical manifestation (e.g., nervous breakdown, miscarriage)
(a) * Not required for erroneous report of relative's death or mishandling of corpse

C. Breach
1. Whether the applicable duty of care was breached is an issue for the trier of fact
2. P must identify specific faulty conduct
3. Methods of Proof
a) Custom or Usage
(1) May be used to establish standard of care
(2) BUT be careful—whole industry may be negligent
b) Violation of Statue—Violation of applicable statute may give rise to "negligence per se"
c) Res Ipsa Loquitur
(1) The very occurrence of an event speaks for itself—used by Ps who cannot
specifically identify what D did wrong
(2) P must show:
(a) Accident is of a type that would not normally occur in the absence of negligence
(b) Instrumentality causing the injury was in D's sole control
(3) If shown, P has made a prima facie case—means no directed verdict for D (case
must go to jury/trier of fact)
D. Causation
1. Actual (Factual) Causation—Must show this first, then proximate causation
a) "But For" Test—But for D's conduct, injury would not have occurred
(1) D is trying to show that injury would have occurred regardless
b) Joint Causes Approach—"The Substantial Factor Test"
(1) Applies where several causes bring about the injury ("mingled causation")
(2) Any D whose conduct was a substantial factor in causing the injury is jointly and
severally liable
c) Alternative Causes Approach
(1) Applies where there are two or more acts, only one of which causes the injury, but it
is not known which one ("unascertainable causation")
(2) Shifts burden of proof to Ds to show they were not responsible
(3) Any D who is unable to exonerate himself is held jointly and severally liable
2. Proximate (Legal) Causation—Think of as a "fairness" test
a) General Rule—D is generally liable for all harmful results within the scope of
foreseeable risk
b) Direct Cause
(1) Arises when there is an uninterrupted chain of events from D's act to P's injury
(2) D is liable for all foreseeable consequences of his actions
(3) D is NOT liable for unforeseeable consequences
c) Indirect Cause Cases
(1) Arises when an affirmative intervening force comes into motion after D's negligent act
and combines with it to cause P's injury
(2) Foreseeable results/foreseeable intervening forces—D ALWAYS liable
(a) Intervening medical malpractice—always foreseeable
(b) Intervening negligent rescue
(c) Reactions to D's conduct (efforts to protect persons or property)
(d) Subsequent diseases
(e) Subsequent accidents caused by original injury (e.g., unable to walk on crutches)

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 (3) Foreseeable results/unforeseeable intervening forces—D liable, UNLESS
intervening force is a crime or intentional tort
(4) Unforeseeable results/foreseeable intervening forces—D NOT liable
(5) Unforeseeable results/unforeseeable intervening forces—D NOT liable

E. Damages
1. "Eggshell-skull" Rule—D takes P as he finds him
a) D must pay full extent of damages suffered by P, even if surprising in scope
b) Concept applies to ALL torts (negligence, intentional torts, strict liability)

F. Affirmative Defenses to Negligence

1. Contributory Negligence
a) On its way out, but apply if question asks for "traditional C.L. defenses"
b) Absolute bar to recovery if P is also at fault (any degree of fault)—very harsh
c) Not a defense to wanton and willful misconduct or intentional torts
d) "Last Clear Chance" Exception—Person with last clear chance to avoid an accident
and fails to do so is liable for the negligence
2. Implied Assumption of Risk
a) Abolished in most states, but apply if question asks for "traditional C.L. defenses"
b) Absolute bar to recovery if P:
(1) Knew of the risk, AND
(2) Voluntarily proceeded in the face of the risk
c) NOT available where P had no alternative but to face the risk (e.g., fraud, force
emergency)
3. Comparative Negligence
a) Pure Comparative Negligence
(1) P's recovery reduced by percentage of fault assigned to P
(2) Permits recovery regardless of degree of P's negligence
b) Modified (or Partial) Comparative Fault
(1) P recovers ONLY IF P's percentage of negligence was less than D's
(2) If not barred, P's recovery reduced by percentage of fault assigned to P

IV. Strict Liability

A. Basic Elements
1. Existence of an absolute duty on part of D to make safe—liability applies regardless of
actions taken to prevent injury (precautions are irrelevant)
2. Breach of that duty
3. Actual and proximate cause
4. Damages
B. Liability for Animals
1. Wild Animals—Strict liability applies
2. Domestic Animals
a) General Rule—NO strict liability
b) Exception—If D had knowledge of dangerous propensity not common to the species
3. Trespassing Animals—Strict liability for harm caused by roaming cattle
C. Ultrahazardous Activities
1. Elements (three):
a) Activity must involve risk of serious harm
b) Activity is incapable of being performed without risk of serious harm no matter how
much care is taken
c) Activity is not commonly engaged in in the particular community
2. Examples
a) Explosives/blasting

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 b) Highly dangerous chemicals
c) Radiation or nuclear energy
3. Rule—D is strictly liable for any foreseeable harm that flows from the activity (safety
precautions are legally irrelevant)
D. Defenses to Strict Liability
1. Contributory Negligence is NO defense
2. BUT Assumption of Risk and Comparative Negligence might apply
V. Nuisance
A. Private Nuisance
1. Substantial, unreasonable interference with another's use or enjoyment
B. Public Nuisance
1. Unreasonable interference with health, safety or property rights of community
2. Recovery by private party requires unique damage not suffered by public at large
C. Generally, liability is strict—does NOT matter if D attempted to prevent harm
VI. Vicarious Liability
A. General Points—EVEN IF D cannot be held liable on a vicarious liability basis, D may still be
found liable on negligent hiring/entrustment grounds
B. Respondeat Superior
1. General Rule—Employers are vicariously liable for torts committed by employees within the
scope of employment
2. Intentional Torts
a) General Rule—NOT w/i scope of employment, thus employer is NOT liable
b) Exceptions (three):
(1) If use of physical force is part of job description (e.g., bouncer)
(2) Jobs that generate friction (e.g., repo man)
(3) Employee is furthering business of employer (e.g., removing rowdy customers)
C. Parents/Child—Parents are NOT liable for tortious conduct of children

VII. Reconciliation of Rights Between Co-defendants

A. General Rule—Joint and several liability (each D responsible for entire damage incurred by P)
B. Comparative Contribution (Majority Rule)
1. Jury is instructed to assign each D a percentage of fault, and out-of-pocket D can seek
contribution from other Ds in accordance with that allocation
C. Indemnification (100% make whole)
1. Out-of-pocket D may be entitled to indemnification IF:
a) D is the "passive party" in a vicarious liability case (e.g., employer can recover from
employee)
b) Distributors/resellers/merchants is entitled to indemnification from manufacturer in
products liability case

VIII.Governmental Tort Immunity

A. Government is immune from tort liability when government engages in traditional government
activities involving exercise of "policy discretion" (e.g., FDA approves drug, governor delays
deployment of national guard)
B. However, government CAN be sued when engaging in proprietary or ministerial activities
(e.g., operating a parking lot, operating college dorms, employee driving car on government
business)

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