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214 Cards in this Set

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Intentional Torts:

What are the elements of an intentional tort?
Volitional Act
Volitional Act
The act or an instance of making a conscious choice or decision.
Desire to cause consequences of the act or belief that the consequences are certain to result from act. Defendant must either desire that his act will cause the harmful result described by the tort or is substantially certian that such a result will occur.
The Defendant's act (direct causation) or a force set in motion by that act (indirect causation) must cause the plaintiff's injury.
Each separate antecedent of an event. Something that precedes and brings about an effect or a result. A reason for an action or condition. An agent that brings something about.
Encompasses any loss or detriment.
What are the
Intentional Torts
False Imprisionment
Trespass To Land
Trespass to Chattels
Assault - Rule
An intentional act which causes plaintiff to experience a reasonable apprehension of an immediate harm or offensive act.
Assault - Apprehension
P must have been aware of threatening act at the time or before it terminated.
Assault -
Harmful or Offensive
This element is satisfied if the contact threatened would inflict pain or impairment of any body function (harmful) or if a reasonable person would regard it as offensive.
Assault -
Liability for assault will not be found unless a reasonable person in the same position as plaintiff would have experienced the same apprehension. However, if plaintiff’s apprehension is reasonable, the fact that defendant lacked the actual ability to cause the harmful or offensive contact does not defeat liability.
Battery -
Intentional Act
Defendant must act with intent either (1) to cause an immediate harmful or offensive contact, or (2) to cause immediate apprehension of such a contact.
Assault -
Intentional Act
Defendant must act with intent to cause (1) an immediate harmful or offensive contact or (2) the immediate apprehension of such a contact.
Battery - Rule
An intentional act which causes plaintiff a harmful or offensive contact.
Battery - Awareness
P need not be aware of the contact.
Battery - Harm
No intended harm is necessary only the intended contact.
Battery -
Harmful or Offensive
This element is satisfied if the contact would inflict pain or impairment of any body function (harmful), or if a reasonable person would regard it as offensive.
§ 3.2(A) “Close” Contact: It is sufficient for a battery if defendant causes a contact with something close to plaintiff, as where defendant snatches a hat from plaintiff’s hand, or pounds on a car in which plaintiff is sitting.
§ 3.2(B) Plaintiff Not Aware:
Unlike assault, plaintiff need not be aware of the contact.
False Imprisonment - Rule
An intentional act which causes plaintiff to be confined or restrained to a bounded area.
False Imprisonment - Intent
Merely intent to confine; mistake is not excuse, nor is good faith belief that the confinement is justified.
False Imprisonment - Confinement
When P is prevented from leaving areas predetermined by D; must be complete; must be not reasonable means of escape/safe exit known to P.
False Imprisonment -
Shoppeker's Rule
Shopkeeper may have privilege to detain persons suspected of shoplifting for a reasonable time (for the purpose of conducting an investigation).
Trespass to Land - Rule
An intentional act which causes physical invasion of plaintiff's land of without the right of entry or permission.
Intentional Infliction of
Emotional Distress - Rule
An intentional act amounting to extreme and outrageous conduct (intentionally or recklessly) that causes plaintiff severe emotional distress.
Conversion - Rule
Volitional act that is done with requisite intent which causes the destruction of or a serious or substantial interference with plaintiff's property.
General intent- must intend to exercise dominion and control.
Conversion - Test
1. Extent/duration of interference/unjust control;
2.the intent to assert right of control over another's chattel; 3.extent/duration of the resulting interference;
4. harm done to chattle; and
5. inconvenience and expense caused to the owner.
False Imprisonment -
Plaintiff Not Aware
§ 4.2 Confined or Restrained to a Bounded Area: Plaintiff may be confined by the use of physical barriers (e.g., locking plaintiff in a room), by failing to release plaintiff where defendant has a legal duty to do so and where plaintiff cannot escape without defendant’s assistance, or by the invalid assertion of legal authority. No duration of confinement is required—a single moment of confinement will suffice.
§ 4.2(A) Resistance or Escape
Plaintiff is under no duty to resist if the defendant uses or threatens to use physical force (and the threat appears credible). A plaintiff is not “confined” if there is a reasonable means of escape of which she is actually aware.
§ 4.2(B) Plaintiff Not Aware
In general, plaintiff must be aware of the confinement or she must suffer actual harm as a result of confinement. Some cases have held that infants or incompetents who are incapable of being aware of their confinement can nevertheless recover for false imprisonment.
IIED - Conduct of D
Extreme, outrageous, and intolerable conduct with the intent to cause severe mental distress.
not merely insulting, profane, abusive, annoying, or threatening (unless D was aware of some particular sensitivity by P).
Conversion - Intent
Intent to exercise dominion or control over the chattel.
IIED - Respnse
Mental suffering need not have physical manifestation or result in bodily harm. Distress must be severe (not mere unhappiness, mild despondency, long term).
IIED - Third Persons
Conduct dircted at a third person (T) is actionalbe by P if act of D intentionally or recklessly caused severe emotional distress to P (witness of harm to immediate family, witness of harm manifests into bodily/physical harm, mishandling of corpse).
What is
Tangible personal property or intangible personal property represented by or merged into a document.
IIED - Cause
Liability only atttaches to the extent that P's emotional response is within the bounds of normal human reactions (unless P extraordinarily sensitive) to conduct by D.
Intentional Act
Defendant must act with intent to cause severe mental distress (but see recklessness).
Conversion - Damages
Full value of the chattel at the time of conversion, plus interest.
Commentators agree that recovery for infliction of emotional distress should be allowed where defendant acts “recklessly,” meaning that defendant acts in deliberate disregard of a high degree of probability that the emotional distress will follow. (This is contrary to the general notion that reckless conduct is somehow “less wrongful” than intentional conduct, and should probably be considered an exception limited to this tort.)
Extreme & Outrageous
This element is satisfied if defendant’s conduct is beyond the bounds of decency—conduct
that a civilized society will not tolerate. Offensive or insulting language is generally not
considered outrageous (except in cases involving defendants who are common carriers or innkeepers, or as to plaintiffs with known sensitivity such as the elderly, children, or pregnant women).
Harmful Contact
contact which produces bodily harm.
Severe Emotional Distress
Plaintiff must prove that the distress suffered was severe—more than the level of mental distress a reasonable person could be expected to endure. The more outrageous the defendant’s conduct, the easier it will be for plaintiff to establish the requisite mental injury.
§ 5.3(A) No Need for Physical Injury
Most states no longer require the plaintiff to show that actual physical injury accompanied the severe emotional distress.
Offensive Contact
Contact which offends a resonable sense of personal dignity (hostile, insulting, loathsome, or unduly personal).
Conduct Directed
at a Third Person
Where defendant’s conduct is directed at a third person, plaintiff may recover (assuming other elements of the tort are satisfied) if (1) plaintiff is present when defendant’s wrongful conduct occurs, and (2) defendant is aware of plaintiff’s presence.
§ 5.4(A) Relationship of Plaintiff to Third Person Cases which permitted plaintiffs to recover for infliction of emotional distress arising from defendant’s wrongful conduct to third persons involved plaintiffs who were near relatives or close associates of the person attacked. The commentators suggest that there is no logical reason to limit the principle in that manner, and that a stranger/plaintiff should be permitted to recover, at least where that plaintiff suffers bodily harm (which provides strong evidence of the bona fides of plaintiff’s claim of severe emotional distress).
Trespass to Land - Intent
Intentional act to enter upon land, cause entry, or remain without privilege.
Analysis: Trespass may be from negligent conduct or abnormally dangerous activity.
Trespass to Chattel - Rule
Intentional interference with the possession of another property.
Trespass to Land - Boundaries
Vertical - Extend above and below surface. Aircraft are exception (flight above w/n boundaries of regulations).
Trespass to Chattel - Dispossession
Taking chattel from owner w/o consent or by fraud/duress.
Trespass to Land - Damages
No actual harm necessary; may recover for all harm resulting to property, persons, and things upon it including consequential damage.
Trespass to Chattel - Intent
Merely intent to act upon possession to chattel w/o privilege. Interference my be through physical contact (direct or indirect) and/or impairment of the condition/quality/value of chattel.
Trespass to Land - Other Things
Action by D merely causes something to enter the land w/o privilege.
Trespass to Chattel - Damages
Physical contact resulting in damages.
Trespass to Chattel -
Intentional Act
This element is satisfied when defendant intentionally performs the physical act which interferes with plaintiff’s chattel. Defendant is liable even though he did not intend or recognize the legal significance of his act. Mistake is not a defense to trespass to chattels.
§ 7.1(A) Chattel: “Chattel” means tangible personal property or intangible property which has a physical representation, such as a promissory note, or documents in which title to a chattel are merged, such as warehouse receipts or bills of lading.
Conversion - Intent
Intent to excersie dominion / control (including by good faith or honest mistake) over the chattel w/o privilege.
Conversion - How to Complete Conversion
1. Acquire possession;
2. Move Chattel;
3. Make unauthorized transfer, delivery, or disposal;
4. Withholding possession;
5. Destruction / material alteration of chattel; and
6. Mere use of chattel w/o privilege.
Defenses to Intentional Torts
1. Privilege,
2. Consent,
3. Self-Defense,
4. Defense of Others,
5.Defense and Recovery of Property,
6. Necessity,
7. Authority of Law, and
8. Discipline
Defenses - Privilege
1. Consent,
2. Privilege created by law irrespective of consent,
3. Mistake - belief that D has privilege to use property
Defense - Consent through Conduct
P willing for D's conduct to occur. Consent is apparent if P's words or conduct are sufficient to create privilege (even if contrary to P's actual state of mind). Prior custom / usage may exist based on prior relationship.
Consent - Capacity
Consent my only be given by one having the capacity or by an authorized representative. Infancy, mental incapacity, intoxication my negate consent.
Consent - Implied
Emergency actually or apparently threatens death or serious harm and there is not time or opportunity to obtain consent, consent will be implied.
Consent - Scope
Privilege is limited to the conduct consented to or acts substantially similar. Once consent is give, P may not complain of the consequences of D's conduct, even if unseen.
Consent -
Mistake / Ignorance / Misrepresentation
Consent given pursuant to P's material mistake, misunderstanding or ignorance as to the nature or character of D's proposed conduct or the extent of the harm to be expected from it. Consent is effective unless D knows of the mistake or induced by his misrepresentation.
Consent - Informed
If D misrepresented or failed to disclose to P the material risks and possible consequences of his conduct, P's consent is not informed.
Consent - Duress
Consent given under duress (threats of immediate harm - directed at P or P's family; valuable property) is not effective.
Consent to Crime
Majority View - consent not effective if the conduct consented is to a crime.

Restatement View - consent to criminal conduct is valid unless in violation of a statute making conduct criminal to protect a class of persons irrespective of their consent.
Privilege to us so much force as reasonably appears to be immediately necssary to protect self against imminent physical harm threatened by the intentional or negligent conduct of another. Use of deadly force may be reasonable if D believes danger of similar harm; not required to retreat or escape. Privilege exists even when D but mistakenly believes self defense is necessary.
Defense of 3rd Person
Privilege exists if D comes to the defense of another person under the same conditions and by the same means as D would if defending self. Duty to protect ones land or chattel or another person.
Defense of Property
D has privilege to use reasonable force to expel another or a chattel from their land, or to prevent the imminent intrusion of another upon interference with his land or chattel.
Defense of Property - Request
P must first request D to desist, unless it appears that request would be useless or cannot be made before substantial harm is done.
Defense of Property - Amount of Force
Amount of force must not exceed the actual or threat of force to prevent or terminate the intrusion. Great physical harm or deadly force is not privileged.
Defense of Property - Traps
Vicious animals, spring guns, concealed traps and mechanical devices are not privileged.
Defense of Property - Mistake
D has no privilege to defend propety even though D mistakenly believed the intruder had no privilege to enter property, unless intruder mistake does not defeat D's privilege.
Defense of Property -
Property of Others
Privilege to defend the property of others, if the property owner is a member of D's immediate family / household or is one in the possession D had a duty to protect.
Defense of Property -
Forcible Retaking of Chattel
Must be in fresh pursuit and demand return (only force used by a reasonable person under similar circumstances).
Defense of Property -
Possession of Land
D is entitled to immediate possession of land through peaceful means ane retake possession without liability for trespass.
Necessity Defense - Rule
Privilege may be invoked when D (in the course of defending their property from some threat of imminent serious harm for which P is responsible.
Defense of Necessity - Public Necessity
Danger to entire community or so many people that public interest necessitate defense against act of another.
Defense of Necessity - Private Necessity
Danger threatens harm to D or their property privilege to comit the act which causes the trespass or conversion subject to liability for resulting physical harm.
Defense of Necessity - Scope
Conduct must be reasonable considering the extent of the threatened harm in relation to the foreseeable damage to the property of another.
Defense of Authority of Law - Rule
Acting under the authority of law is privileged, under certain circumstances, to commit acts which would otherwise constitute assault, battery, confinement, trespass or conversion.
Defense of Authority of Law - Scope
Discretionary - exercise of significan judgment / discretion in determining how to act.
Ministerial - Not privilege if done improperly, regardless of good faith.
Defense of Authority of Law -
Scope: Jurisdiction
Acts done w/o jurisdiction are not privileged. Acts done merely "in excess of" D's jurisdiction are privileged if done in good faith.
Defense of Authority of Law -
Types of Acts
Arrest and prevention of a crime, execution of civil process, writs, court orders, or acts required/authorized by legislation are privileged acts.
Defense of Authority of Law -
Use of Force
Privilege to break & enter an enclosure / building to use force against the person of another, the amount of such force depend upon the source and nature of privilege exercised.
Defense of Discipline -
Rule for Parents
A parent is privileged to apply reasonable force or to impose such reasonable confinement upon their child they believe necessary for the proper control, training, or eduction of the child.
Defense of Discipline -
Rule for Loco Parentis
Privileged extended to persons having responsiblity to apply reasonable force or to impose such reasonable confinement upon the child they believe necessary for the proper control, training, or eduction of the child.
Defense of Discipline -
Reasonableness of force / confinement depends upon
1. Parent or responsibility for care,
2. Age, sex, and physical/mental condition,
3. Nature of the offense and D's motive,
4. influence of example,
5. The necessity and appropriateness to compel obedience, and
6. Disproportionate, unnecessarily degrading, likelihood to cause serious or permanent harm.
Negligence -
Liability Rules:
Cause of Action
1. Duty to act or refrain from acting,
2. breach of failure to confirm conduct to required standard,
3. sufficient causal connection between the negligent conduct and injury result, and
4. actual / provable harm the law says is measurable and compensable in monetary damages.
of Negligence -
The conduct which falls below the standard established for the protection of others against unreasonable risk of harm.
Negligence - Proximate Cause
The harm must be w/n the scope of liability. Not an element of tort but liability limitation that ceases recovery, even when tort elements are established.
of Negligence -
Objective Test
Whether or not D intended to exercise due care the best they could to act as a reasonable person under the same or similar circumstances.
Negligence - Required Care
Ordinary / due care of a reasonably prudent person under same or similar circumstances.
Negligence - Reasonable Person
1. Knowledge, Experience, and Perception;
2. Knowledge Common to the Cmty;
3. Activities Requiring Skill;
4. Physicians;
5. Physical Characteristic;
6. Mental Capacity; and
7. Minors.
Negligence - Reasonable Person:
Knowledge, Experience and Perception
Judgement of D's conduct will be based on what D actually knew and observed, what a reasonable person would have known or perceived. Person of superior intellegence / memory perception / knowledge / judgment will be held to standard of such a person.
Negligence - Reasonable Person:
Knowledge Common to Cmty
Reasonable person knowledge of things which are common knowledge in the community - commonly known qualities, habits, and characteristics of human beings, animals, and things.
Negligence - Reasonable Person:
The standard of medical care established by the customary practice of a reasonably, well-qualified practitioner in that field. Specialist are held to standards customary to their field.
Negligence - Reasonable Person:
Physical Characteristics
The physical deficiency or disability used to measure D's conduct against that of a reasonably prudent person with his physical characteristics.
Negligence - Reasonable Person:
Mental Capacity
Conduct measured against the reasonably prudent sane, sober and normal person.
Negligence - Reasonable Person:
Measure against a reasonable conduct of a child of D's age, intelligence, and experience under similar circumstances - except when child is involved in adult activities requiring special skill and training or a young child incapable b/c lack of mental maturity / experience to assess and respond to risks.
Negligence - Conduct in Emergencies
May factor in the reasonableness of choice of action when faced with emergency requiring rapid decision. May have been negligent in failing to anticipate the emergency or creating the emergency itself - thus emergency would not apply.
Negligence - Sudden Incapacity
Negligent if D ought to have foreseen an incapacity and failed to take reasonable precautions to prevent the act.
Negligence -
Anticipating Acts of Others
Regulation of one's conduct measured in light one can anticipate others will do, as a reasonable person (under similar / same circumstances).
Negligence -
Failure to Warn
If there is unreasonable risk of harm inherent in D's conduct, D must reduce that risk so far as reasonable possible to exercise reasonable care (adequate warning of the remaining risk)
Negligence -
Unreasonable Risk
Risk is unreasonable when the foreseeable probability and gravity of harm outweigh the burden to D of alternative conduct that would have prevented the harm.
Negligence -
Magnitude of Risk
Likelihood that the harem will result in conjunction with the gravity/seriousness of the potential harm. Includes both the extent of damage and the relative societal value of the protected interest.
Negligence -
Burden of
Alternative Conduct
The burden of reducing/eliminating the risk by alternative conduct. Factors include importance/societal value; utility of the conduct as means to that end; feasibility of alternative/safer conduct; relative cost of safer conduct; relative utility of safer conduct; and relative safety of alternative conduct.
(Learned) Hand Test
Balance for determining whether the conduct creates and unreasonable risk of harm.

B > PL
The burden (B) and utility of the conduct compared to alternative safer conduct must be greater than the probability (P) that harm will result from the proposed conduct multiplied by the gravity of the harm/loss (L) that will probably result.
Proof of Negligence -
Burden of Proof
P must introduce sufficient evidence to support a finding by a perponderance of the evidence on each element of cause of action.
Negligence -

1. Duty
2. Negligence
3. Causation
4. Damages
Res Ipsa
The thing speaks for itself.

Rule of circumstantial evidence in which P can make out a prima facia case of D's negligence by proving that the instrumental cause of P's injury was under the control of D and the occurrence would not have happened in he absence of negligence by D.
Prima Facie
Evidence sufficient to make a submissible case (sufficient to support a jury's finding) on each element of a cause of action or defense.
Product Liability
P need not prove the specific defect in the product, so long as the evidence tends to show thta the product malfunctioned in such a way that the existence of a defect may be inferred and also tends to exclude possible causes other than product defect.
What are the
Elements of a Tort?
Breach of the Duty
The defendant must owe a legal duty to the victim. A duty is a legally enforceable obligation to conform to a particular standard of conduct. Except in malpractice and strict liability cases, the duty is set by what a "reasonable man of ordinary prudence" would have done. There is a general duty to prevent foreseeable injury to a victim.
The defendant breached that duty.
The breach was the cause of an injury to the victim. The causation does not need to be direct: defendant's act (or failure to act) could begin a continuous sequence of events that ended in plaintiff's injury, a so-called "proximate cause."
There must be an injury. In most cases, there must be a physical or financial injury to the victim, but sometimes emotional distress, embarrassment, or dignitary harms are adequate for recovery.
Trespass to Land -
Intentional Act
Defendant must act with intent to cause a physical invasion of plaintiff’s land. Intentional entry onto land is a trespass even though defendant does not realize he has crossed a boundary line, or has a good faith belief that his entry is lawful. Mistake is not a defense as to a trespass action.
§ 6.1(A) Plaintiff Must Be in Possession
In order to bring an action for trespass, plaintiff must be in actual possession or have the right to immediate possession of that land. Distinguish “possession” from “ownership”— an adverse possessor or a lessee may maintain a trespass action against entering wrongfully
onto land possessed (but not owned) by them. Similarly, if the person who holds legal title to the land is not in possession, that person may not maintain a trespass action as to that land.
Trespass to Land -
Physical Invation of
Plaintiff's Land
This element is satisfied if defendant enters or causes a third person or object to enter onto plaintiff’s land, enters onto plaintiff’s land lawfully but then remains when under a legal duty to leave, or fails to remove an object from plaintiff’s land when under a legal duty to do so.
§ 6.2(A) Intrusions Not Involving a Discernible Physical Object
Some events which might logically be considered intrusions onto land, such as airborne pesticides which float onto plaintiff’s land from defendant’s crop dusting of adjacent property, were traditionally addressed by tort law under nuisance or strict liability principles. Some jurisdictions have begun treating such invasions as trespasses to land if actual harm was caused thereby.
§ 6.2(B) Air and Sub-Surface Areas
“Plaintiff’s land” includes the area both above and beneath the surface. Traditionally, plaintiff’s land was thought to include the air space and the subsurface to a level that plaintiff did or could make beneficial use of.
(1) Aircraft: Aircraft flying at or above normal flight altitude do not “trespass” on the land above which they are flying. An intrusion into plaintiff’s “airspace” may be trespassory if it both (1) enters into the “immediate reaches” of that airspace and (2) interferes substantially with the use and enjoyment of plaintiff’s land.
Trespass to Chattel -
Interference with plaintiff’s chattel is actionable if it constitutes dispossession or intermeddling. (Distinguish more serious interferences with plaintiff’s chattel which would amount to a conversion, discussed below.)
§ 7.2(A) Dispossession:
Dispossession is a direct interference with plaintiff’s possession, such as where defen-
dant temporarily takes plaintiff’s chattel or wrongfully refuses to return it.
§ 7.2(B) Intermeddling
Intermeddling is an interference with a chattel that does not directly affect the plaintiff’s possession. Examples: smearing mud on plaintiff’s truck, or kicking plaintiff’s dog.
Trespass to Chattel -
The plaintiff must have been in actual possession or have had the right to immediate possession of the land.
Trespass to Chattel -
Proof of actual damages is and element of the cause of action. Actual damages would include the value of loss of use of the chattel during a dispossession, or the cost to remedy and intermeddling.
Conversion -
Intentional Act
As with trespass to chattels, mistake is not a defense to trespass to chattels. Defendant is liable even though he did not intend or recognize the legal significance of his act.
Conversion -
Destruction Serious
“Destruction” or “serious and substantial interference” with plaintiff’s chattel is alternatively described in the cases as “the exercise by defendant of dominion and control” over the chattel. This is an interference with plaintiff’s property interest that is more serious than in a trespass to chattels. In distinguishing between the two torts, the longer the period
of interference and the greater the use of the chattel by defendant, the more likely it will be considered a conversion rather than a trespass to chattels. The following types of acts are likely to be classified as conversions:
A. wrongful acquisition (theft, embezzlement, receiving stolen property)
B. wrongful transfer (selling, misdelivering, pledging)
C. wrongful detention (withholding from owner)
D. loss, destruction or severe damage
E. material alteration
F. misuse
Conversion -
Plaintiff is generally permitted to elect either recovery of damages (usually fair market value plus consequential losses) or replevin/detinue/claim and delivery (compelling defendant to return a converted chattel, with recovery of damages attributable to its wrongful
§ 8.3(A) Offer by Defendant to Return Chattel: If the defendant offers to return plaintiff’s chattel, this does not alleviate the conversion, and plaintiff need not (but may) accept the return. Such an offer might be considered in mitigation of damages by a defendant who “innocently” converted plaintiff’s chattel (e.g., defendant unknowingly received property stolen from the plaintiff by a third person).
Defenses and Privileges
to Intentional Torts -
Negligence -
Degrees of
The duty of those who conduct certain dangerous activities is sometimes stated as greater than "ordinary" or "reasonable" care.
Negligence -
Common Carrier Duty
of Care
Common carriers are said to owe their passengers "the highest degree of care consistent with the ode of conveyance used and the practical operation of their business.
Negligence -
Persons responsible for certain dangerous instrumentalities (e.g., high-voltage) must exercise a "high degree of care commensurate with the danger.
Negligence -
Recklessness Definition
Reckless disregard of the safety of another (i.e., wilful and wonton misconduct) when D knows or has reason to know that:
1. acts of D create an unreasonable risk of harm and
2. the risk is relatively high, either in degree or in the probability that harm will occur. Distinguished from negligent conduct D must be conscious that it creates a relatively high risk of harm to another.
Negligence -
Distinguish from
Intentional Torts
Intentional tort when D intends to bring about the consequences or knows that they are substantially certain to occur. Reckless conduct las that certainty of result.
Negligence -
Duty and Relationship
D has duty to exercise reasonable care to avoid subjecting others and their property to unreasonable risks of physical harm Negligence law has traditionally held that D is not subject to liability to P unless D breached a duty owed to P and not someone else.
Negligence -
Nature and Scope
of Risk
Conduct may be negligent because it foreseeably threatens property damage but not personal injury, or may foresee one type of harm to P but it actually causes another type of harm as to which the risk was not unreasonable.
Negligence - Misfeasance
Tortious conduct consisting of an affirmative act
Negligence - Nonfeasance
in action which results in, or allows, harm to P.
Negligence - Relationships
Creating Duty
Per-exising relationships which support duty to aid or protect another include carrier-passenger, inkeeper-guest, landowner-lawful entrant, emlpoyee-employer, jailer-prisoner, school-student, parent-child, store-customer, husband-wife, host-guest.
Negligence -
Responsible for
Peril or Injury
Duty arises when D is responsible for P's injury or position of peril, whether or not D was negligent.
Negligence -
Aid to Helpless
One who undertakes to render aid or protect P, who is helpless and adequately aid or protect himself must do so with reasonable care. Having undertaken the duty, D may not abandon P or leave him worse off.
Negligence -
When D undertakes to render services which he knows or should know are for Ps protection, D must perform those services with reasonable care, at least if:
1. his failure to do so increases the risk of harm to P or
2. P's injury results form his reliance on D.
Negligence -
Duty Arising
Ex Post Facto
If D does an act, not tortious a the time and later discovers that his act creates an unreasonable risk of harm to P, D must exercise reasonable care to prevent the risk form taking effect.
Negligence -
Statutory Duty
of Protection
When a statute requires one to act for the protection of another, the court may (or may not) use the statute as a basis for an affirmative duty and its scope.
Negligence -
Duty to Control
Conduct of Another
Certain relationsips carry with them a duty by D the dominant/custodial member, to use reasonable care to regulate the conduct of:
1. the person with in his custody or control so as to protect third persons or
2. third persons so as to protect the person in his custody or care.
Negligence -
Parent to Child
Parent must exercise reasonable care to prevent tortious conduct by his child provided the parent knows or has reason to know he has the ability and knows or should know of the necessity and opportunity to exercise such control.
Negligence -
Master has similar duty with respect to servant; even extends to one acting outside the scope of is employment if the servant is on the master's premises or using his chattel.
Negligence -
Person on D's Land
D has similar duty with respect to a person using his land or his chattel in his presence and with his permission.
Negligence -
Custodian of Dangerous
If D has custody of a person D knows to have dangerous propensities, Du must exercise reasonable care to prevent that person form doing harm.
Negligence -
Duty to Protect
Person in Custody
If D has custody of P under circumstances such that
1. P is deprived of his normal power of self protection or
2. P must associate with persons likely to harm him, then D has a duty to exercise reasonable care to prevent tortious conduct against P.
Negligence Defenses
Contributory & Comparative
Contributory negligence is conduct by P which creates an unreasonable risk of harm to P, and which combines with D's negligence to cause P's injury. Generally, contributory negligence uses the same rules and tests as negligence.
Negligence Defenses
Contributory & Comparative
Burden of Proof
Contributory negligence is an affirmative defense
Negligence Defenses
Contributory & Comparative
Effect of Plaintiff's
Contributory Fault
Contributory negligence was once a complete defense that totally barred Ps recovery. No in most jurisdiction, it merely reduces his damages pro tanto, although it can still be a complete bar.
Negligence Defenses
Contributory & Comparative
Ps contributory negligence is not complete bar to is recovery (in all but four state and the District). Ps damages are calculated and then reduced by the proportion which Ps fault bears to the total causative fault of Ps harm.
Negligence Defenses
Contributory & Comparative
Types of Comparative
Minority Rule - P may recover a portion of his damages no matter how great P's negligence in comparison to that of D.
Majority - P recovers nothing if P's negligence was as great as or greater than D.
Negligence Defenses
Contributory & Comparative
Assigning Shares
1. the duty owed by each person,
2. extent to which each person's conduct deviated from that duty, &
3. extent to which the tortious conduct of each person caused the injury in question.
Negligence Defenses
Contributory & Comparative
Intentional or Reckless
Majorty - P's contributory negligence will reduce P's recovery even though D's conduct was reckless but not if it was intentional.
Negligence Defenses
Contributory & Comparative
Strict Liability
Some comparative negligence jurisdictions permit P's ordinary contributory neligence to reduce P's damages;
Other jurisdiction reduce P's damages only for assumption of the risk.
Negligence Defenses
Contributory & Comparative
Safety Statutes
Contributory negligence is not a defense to action founded upon certain types of safety statues intended to protect a class of persons from dangers against which they are incapable of protecting themselves.
Negligence Defenses
Contributory & Comparative
Serious Misconduct
In some jurisdiction, if P's contributory fault was seriously unlawful or immoral conduct, P will be barred from recovery.
Negligence Defenses
Contributory & Comparative
Same as negligent conduct. Defense not available unless P's harm results from the risk which made P's conduct negligent.
Negligence Defenses
Contributory & Comparative
Imputed Contributory Negligence
Negligence of a 3rd person will not be imputed to P so as to reduce or bar P's recovery for injuries caused by D's negligence.
Negligence Defenses
Contributory & Comparative
Imputed Contributory Negligence
EXCEPTION - Master/Servant
Master's recovery against a negligent D is reduced/barred by the negligence of his servant acting within the scope of employment.
Negligence Defenses
Contributory & Comparative
Imputed Contributory Negligence
EXCEPTION - Joint Enterprise
P is injured by the concurrent negligence of D, a 3rd person outside the enterprise, and another member (M) of the enterprise. Ps recovery against D is reduced by M's negligence.
Negligence Defenses
Contributory & Comparative
Imputed Contributory Negligence
EXCEPTION - Consequential Damages
Where P has a cause of action based on person injuries to another (A), P's recovery is reduced by A's contributory negligence.
Negligence Defenses
Contributory & Comparative
Imputed Contributory Negligence
P's Negligent Failure
General: If P has a duty to control the conduct of another (A) and negligently fails to do so, A's contributory negligence (combined with P's) reduces/bars P's recovery against D (also contributory to P's injury). Parent's recovery from D for injuries to P's child caused by D's negligence may be reduced/barred by P's negligence in protecting/supervising his child.
Negligence Defenses
Contributory & Comparative
Assumption of Risk
Common Law-If P voluntarily assumes a risk of harm arising from negligent/reckless conduct of D, P cannot recover.
Negligence Defenses
Contributory & Comparative
TERM - Express
P expressly agrees (usually written in advance) to relieve D of duty to exercise care for P's safety with respect to known or possible risk.
Negligence Defenses
Contributory & Comparative
TERM - Inherent Hazards
Not Arising From Negligence
P choose to engage in an activity which has certain inherent and commonly accepted risks, even though others exercise proper care.
Negligence Defenses
Contributory & Comparative
TERM - Risk of Future Negligence
P voluntarily enters into a relationship with D knowing that there is a risk that D will act negligently.
Negligence Defenses
TERM - Assumption of Existing
Negligently-Created Risk
P is aware of risk created by the negligence of D, proceeds/continues voluntarily to encounter it.
Negligence Defenses
EXPRESS Assumption of Risk
Rule - If P expressly agrees to accept a risk of harm arising from D's negligent conduct, P cannot recover for such harm, unless agreement is invalid.
Construction - Agreements construed against D, are not enforceable if P was reasonable ignorant of the term.
Public Policy - Agreements are unenforceable when contrary to public policy.
Negligence Defenses
IMPLIED Assumption of Risk
Rule - If P knows, appreciates and understands the risk of harm created by D's negligent/reckless conduct, and subjects himself to the risk by conduct which impliedly manifest his consent to accept the risk, then D is subject to the assumption of risk defense.
Negligence Defenses
IMPLIED Assumption of Risk
Manifestation of Consent - consent to accept the risk, and therefore P's conduct must impliedly manifest that consent.
Knowledge & Appreciation of Risk - Consent must be an informed one, and therefore D must show that P knew of the existence of the risk, and understood and appreciated its unreasonable character.
Voluntariness - P's assumption of the risk must be voluntary
Violation of Statute - P's assumption of risk bars/reduces P's recovery based on D's violation of a statute, unless this result would defeat a policy of the Statute.

Modern views towards movement to abolish this as negligence defense as it overlaps completely with the doctrine of contributory negligence. Those who participate in professional/amateur sporting events assume the risk of injuries resulting from other players' misconduct.
Negligence Defenses
P must file timely. Statute of limitations (SOL) is usually an affirmative defense that is waived if not asserted. SOL usually begins the date the cause of action accrues/date on which the injury occurs/death.
Negligence Defenses
Supplement and override statutes of limitations, the discovery rule and other similar rules and exceptions. Instead an outer limit beyond which D can no longer be held responsible for a completed activity, irrespective of whether an injury has occurred.
Negligence Defenses
Statutes sometimes require P to give notice to the potential D with in a certain period, especially when D is government entity.
Negligence Defenses

Immunities - Gov Employee
Tort liability for US Gov employees acing within the scope of office where the US (as if private person) would be liable to plaintiff
Negligence Defenses

Immunities - Charities
Not Defense:
Charitable, educational, religious and benevolent organization only exists in few jurisdiction.
Negligence Defenses

Immunities -
Not Defense:
Based on relationship; generally not a defense.

Proximate Cause - RULE
Legal Cause / Scope of Liability
Liability of Defendant is limited to persons and consequences that bear some reasonable relationship to Defendants tortious conduct.
Unforseeable Consequence
MAJORITY: Defendant's liability is limited to 1-the forseeability of D's tortious conduct and 2-persons within that foreseeable zone of danger.

Cause in Fact - RULE
Defendant's liability is limited to injury that would not have occurred "BUT FOR" D's conduct.
sine qua non - w/o which it could not be
Causation Proximate Eggshell Rule
Take the victim as you found them. Defendant liable for full consequences of Plaintiff's injury (even if greater than reasonable person....circumstances) if harm to P was reasonable type foreseeable (b/c P is unusually susceptible to the injury).

Cause in Fact - Proof
Cause of Plaintiff's harm must be linked to Defendant's tortious conduct.

Cause in Fact - Indivisible
If the tortious conduct of Defendant 1 and 2 concur and both are cause of Plaintiff's harm, either or both are liable for full damages.

Cause in Fact - Divisible
If the tortious conduct of Defendant 1 and 2 each cause separate parts of Plaintiff harm, each D is liable for only the part of the harm caused by their tortious action.
Market Share Liability - When Plaintiff is harmed by product that was produced and sold by multiple manufacturers, the manufacturer representing a substantial share of the product at the time of consumption can be jointly and severablly liable for proportional part of Plaintiff's harm.

Cause in Fact - Joint

Cause in Fact - Severable

Intervening Cause
Conduct by a third party after Defendants tortious conduct, operating with or upon D's act to produce Plaintiff harm.
If cause was foreseeable or was not foreseeable but the consequences were the type D could foresee, D is liable.
Negligence -

Attractive Nuisance
Defendant is subject to liability for physical harm to trespassing children caused by an artificial condition upon the land if D fails to exercise reasonable care to eliminate or otherwise protect them.
D must know/knowledge that 1-condition where it exists is where children are likely to trespass; 2-children (who could foreseeably trespass) will be attracted; 3-the condition exists and should have realized potential harm to children; 4-b/c of youth, children would not realize risk of harm; 5-burden of eliminating danger were outwieghed by the risk to children.
Negligence -

Person who has priviledge to enter or remain on land but is not an invitee.
D is liable for intentional and reckless (wilful and wanton) conduct.
Negligence -

Public - person invited to enter/remain as a member of the public for which land is held.

Business Visitor - expressed/implied from Defendant's conduct to enter/remain for purpose connected with business dealings.
D must exercise reasonable care for invitees.
Product Liability

Defendant is not only liable to the ultimate purchaser but to all persons foreseeably exposed to the risk.
Product Liability

Expressed & Implied
Expressed warranties are promissory assertion of fact.

Implied warranties imply minimum standards of quality, including safety.
Product Liability
Unreasonably Dangerous-product defect renders it "unreasonably dangersous" to the consumer. D liable for design defects, errors/omissions in manufacturing/assembly/production, and inadequate warring potential harm or directions for proper use.
Vicarious Liability

While acting on behalf of another, Defendant is liable for harm to Plaintiff for tortious actions committed. May subject third party (for whom D is acting).
Vicarious Liability Master-Servant
If at the time of the act, the servant was acting in course/scope of duties, master/employer is vicariously liable for harm to Plaintiff.
Scope/course depends on job description, time/place and purpose of actions, and foreseeability of action.
Vicarious Liability

Independent Contractors
Employer is not vicariously liable for physical harm caused by the tortious conduct of an independent contractor.

Exception is when the employer fails to exercise reasonable care (i.e., instructions, selection of competent/experienced persons, and working equipment).
Vicarious Liability

Employer must provide reasonable safe working environment,
Defense: assumption of risk, contributory risk and fellow servant rule.
Vicarious Liability Fellow Servant Rule
Employer is not liable for and injury to an employee caused solely by the negligence of a fellow servant in the performance of work.
Vicarious Liabilty Automobiles
Owner who is the passenger in his own vehicle is not liable for the negligence of the driver. May be liable for any failure to exercise control over the driver / maintenance of vehicle.
Nuisance Liability Private Action
Action/thing that substantially/unreasonably interferes with Plaintiff's use and enjoyment of land.
Nuisance Liability Private Fault
D's interference mus be intentional, reckless, negligent or the result of abnormally dangerous activity to be strict liability.
Nuisance Liability Private Gravity
Gravity of harm is based on 1-extent; 2-character; 3-social value impact to P's use/enjoyment; 4-suitablity of use/enjoyment; and 5-burden of P to avoiding harm.
Nuisance Liability Private Remedies
damages in one action; injunction to stop D from action
Nuisance Liability Private Defenses
Contributory, Assumption of Risk, Coming to Nuisance, Others Contribution to Nuisance.
Nuisance Liability Public
Volitional act that substantially and unreasonablly interferes with a right common to the general public (health, safety, peace, comfort, convenience). Interference must be common to the public as a class.
Nuisance Liability Public Remedies
Prosecution by government (criminal or civil).
Negligent IIED Rule
Conduct of Defendant results in any impact with Plaintiff's body support D's liability for IIED.
Negligent IIED Zone of Danger
Defendant's conduct threatens (not resulting in) bodily harm, Plaintiff may recover based on the fear, shock or emotional distress caused by presence in zone of danger.
Negligent IIED Bystander Rule
Defendants conduct not generally liable if it threatens/causes physical harm to a third person and Plaintiff suffers emotional distress as a witness.
Exception-Plaintiff may recover if 1-injury is serious; 2-P is immediate family of person in peril; 3-shock results in bodily harm to P; 4-event is short in duration; and 5-P is a witness to event or immediate aftermath.
Causation Proximate Fear of Future Harm
Plaintiff may be allowed to recover for mental distress where P was exposed/fears harm resulting from Defendants action.
P must show actual exposure will result in harm (>50% probability); fear results in sever emotional distress due to impending harm.

A defamatory communication that lowers the plaintiff in the esteem of the community or discourages third parties form association/business deals.

Per Se
Defamation that is apparent on the face of the message that it will injure the plaintiff's reputation.

Recorded/preserved (written, audio, video) communication to a third party that lowers the esteem of the plaintiff in the community or discourages third party association/business.

Libel Per Quod
Libel that is not obvious (on the face of the communication) that it is defamatory. Plaintiff must plead and establish extinsic facts to establish the defamation (demonstrate special damages).

Spoken communication (not preserved) to a third party that lowers the esteem of the plaintiff in the community or discourages third party association/business.

Slander Per Se
Slander that is presumed so harmful that the plaintiff suffered damages from the mere utterance.
Notorious Crime, Loathsome Disease, Business/Trade/Office,

Slander Per Se

Notorious Crime
Slanderous communication that imputes the plaintiff committed a crime involving moral turpitude or infamous punishment.

Slander Per Se

Lothsome Disease
Slanderous communication that one has an incurable/loathsome disease.

Slander Per Se

Slander which imputes behavior or characteristics that are incompatible with the proper conduct of the plaintiff's business, office, trade or profession.

Slander Per Se

Slander Per Se to falsely impute unchastity (traditionally of a woman)