Torts Outline
Topic Definition Comment
7 intentional torts
1) Defendant must commit a harmful or offensive contact
1) reaosonable person with ordinary sensitivity
Battery 2) That contact must be with Plaintiff's person
2) Anything connected to the person (chair)
Contact made - hit someone
1) Defendant must place Plaintiff in a reasonable
1) Knowledge = awareness
Assault apprehension/knowledge
2) Words alone lack immediacy
2) That apprehension must be of an immediate battery
(ex: Falsely accused shoplifter told to wait for police)
1) Defendant must commit an act of restraint
False imprisonment -Have to know you are being restrained
2) Plaintiff must be confound in a bounded area
- not bounded area if reasonable means of escape
Intentional Infliction 1) Extreme and outrageous conduct by Defendant
Outrageous = repetitive conduct, Defendant is a common
of Severe Emotional 2) That must cause severe emotional distress
carrier (hotel), Plaintiff is a member of a fragile class
Distress (IIED) OUTRAGE!
1) An act of physical invasion 1) Physical invasion = can throw things but must be tangible
Trespass to land
2) act must interfere with Plaintiff's possession of the land 2) can be someone in current possession
Intentional interference with personal property = minimal Took a book and gave it back 5 hours later with enough
Trespass to Chattel interference time to study
Intentional interference with personal property = significant
Conversion Took book and gave it back 3 days later and failed exam
interference
Defenses to intentional torts
•Express - by a statement (unless under fraud or duress) All - Battery, Assault, False imprisonment, IIED, Traspass to
Consent
•Implied - based on rational interpretation Land, Trespass to Chattel, Conversion
Self defense, defense of others, defense of property
Threats in progress or imminent/reasonable belief that threat is
Protective Priviledges Battery, Assault, False imprisonment
genuine
Reasonaby necessary force to repel
Pubic necessity: Complete liability - protect the community
Necessity doctrine Private necessity: Incomplete liability - have to pay damages - Trespass to land, trespass to chattel, conversion
protect own interests
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Torts Outline
Topic Definition Comment
The Tort of Defamation
1) Need a defamatory statement made by Defendant that
If private person - Show negligence
specifically IDs the Plaintiff
Defamation elements 2) Need a publication of that statement
If public - show malice
3) Damage (to plaintiff reputation)
Must know who the plaintiff is (if a group, must be small
Defamatory statement Tends to adversely effect reputation
enough to identify)
Plaintiff must be alive Person must be alive to have a claim - once they die, no liability
1) only need to reveal to one person othen than the Plaintiff
Publication of
2) Yelled at a party but nobody heard/understood, not
statement
defamatory
Libel A defamatory statement written
Per se = always defamatory statements no matter what
1) imputing unchasity of married woman; 2)Plaintiff
Slander A defamatory statement oral or spoken
suffers from loathesome disease (like VD); 3) Impune
business integrity; 4) Committed crime of moral turptitude
1) Consent
Defenses to
2) Truth (proof)
defamation
3) Privileges
Defamation of Public 1) Statement was false (plaintiff must prove this)
concern 2) The plaintiff must prove fault (sports figures, military…etc)
Defamation of Private
figure Only necessary to show statement was made negligently
Negligence - Duty, Breach, Causation, Damages
MUST MEMORIZE
To establish negligence, the plaintiff must show 4 elements: (1) duty, (2) breach of that duty, (3) causation, (both actual and proximate) and (4)
damages. A duty is owed to foreseeable victims and the duty owed is that of a reasonable prudent person. One must not breach this duty and if
they do, the plaintiff must prove that “but-for” defendant’s conduct they would not be harmed (actual causation) and that the injuries were
foreseeable (proximate). Lastly, one must suffer damages as a result of the negligence.
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Torts Outline
Negligence - Duty
Topic Definition Comment
Who is the duty 1) Foreseeable victims are owed a duty
To whom do I owe a duty and how much care?
owed? 2) Anyone outside the Zone of Danger is going to lose
How much care to
exercise? Reasonably prudent person standard
Special standards of care
Children under 5 don't owe a duty
Negligence claim If a kid is engaged in adult activity, return to reasonably
5-18 obligated to exercise care of a hypo kid in similar age,
against kids prudent person
experience, intelligence acting under similar circumstances
Defendant must exercise skill and knowledge normally possessed
Negligence claims by members of that profession in good standing in similar
Plaintiff usually needs an expert witness to demonstrate the
against professionals communities
technical aspects of the job and show lack of confirmity
(malpractice) Informed consent duty - Doctor has to explain risks of medical
procedure PRIOR to doing the procedure
Types of Entrants
Unknown Trespasser - No duty owed to them
Known Trespasser - Duty owed to condition that is artificial,
highly dangerou, concealed from trespasser and known to
the Defendant
Negligence case where someone comes onto real estate, gets hurt Licensee - Enters with permission but confer no economic
Premises liability cases by dangerous object and then sues possesor of the land for benefit to the possessor (social guest). Need to protect
negligence from hazards that are concealed from entrant, known in
advance by Defendant
Invitee - Enters with permission with either business benefit
or held open to public (park). Need to protect from
concealed hazard, knew in advance, or could have
discovered through reasonable inspection
Premises liability Firefighters and cops can NEVER recover in negligence for
(firefighter doctrine) inherent risk of their jobs
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Torts Outline
Negligence - Duty (continued)
Topic Definition Comment
Premises liability Attractive Nuisance Doctrine - if there is something that draws
(Child Trespassers) kids in, likely liable
2 alternate ways
1) Fix the problem
possessor can satisfy
2) Give a warning
the duty
Negligence Per Se
In most jurisdictions, the violation of a criminal or regulatory
statue that imposes a duty of care establishes negligence as a
matter of law, so long as:
The defendant violates the statute without excuse by failing to
Automobile Drivers - In most jurisdictions, an automobile
perform the imposed duty;
Negligence per se driver owes a duty to conform to a reasonable person
The plaintiff is in the class of people meant to be protected by the
standard of care to their guests and passengers
statute;
The plaintiff suffers the type of harm the statute was designed to
protect against; AND
The defendant’s violation of the statute was the actual and
proximate cause of the plaintiff’s injury.
•Not duty to act affirmatively
Duties to act •No duty to rescue Exceptions: Pre-existing relationship, if you caused peril,
affirmatively •If you decide to rescue, can be held liable if you start and then duty to rescue
act negligently
No physical harm but Plaintiff is left mentally upset:
•NEED PHYSICAL HARM
Negligence infliction of
1) Near miss causing physical symptoms
emotional distress
2) Bystander case - witness harm to another
3) Pre-existing relationship
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Torts Outline
Negligence - Breach
Topic Definition Comment
1) ID the faulty behavior
Breach requirements
2) Plaintiff must explain whey the behavior is faulty
"The thing speaks for itself"
1) The accident is of a type NORMALLY associated with negligence
Res Ipsa Loquitor
2) Show an act of this type normally due to someone in the
Defendant's position
Negligence - Causation
But for the Defendant's activity and breach, I would be fine
Merged cause cases - 2 people set a separate fire, if breach
Factual causation capable of causing harm by itself? Both are liable Breaches are factual cause (not defendants)
Unforeseeable causes - Someone gets shot but 2 people shoot.
Unclear who did it
Foreseeability test - Defendant likely liable for all harmful results
Proximate causation that are normal incidents of and within the increased risk caused
by the specific act in question
Negligence - Damages
Liable for unforeseeable and uncommon reactions to
Eggshell skull principle Take your plaintiffs as you find them Defendant's negligent act
Preliminary: Granted at beginning of lawsuit
Injunctions
Permanent: Granted at the end
Once Defendant proves Plaintiff fails this, jury is assigned #
Comparative Arises when Defendant proves that Plaintiff fails to exercise
that reflects their respective duty of fault. Plaintiff recovery
Negligence (defense) proper care for their safety
is reduced based on % of fault.
Occurs before the end of trial, when the fact finder is determining
Damages the amount of fault on behalf of the defendant(s) and perhaps the Comparative/Contributory Negligence
fault of the plaintiff as well
Verdict has been reached, two or more defendants have been
Payout Joint and several liability
found at fault and we are in a joint and several liability jurisdiction
After PAYOUT, one defendant or entity seeks to be repaid by
Payback another defendant Contribution/indemnity
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Torts Outline
Topic Definition Comment
Strict Liability
Domesticated: House pets and farm animals (dogs). Typically no
strict liability caused by domesticated animals unless animal had
Injuries caused by
vicious or dangerous propensities
animals
Wild: Strict liability if causes harm (safety precautions are
irrelevant)
Engaged in this type of activity? Strict liability
Abnormally dangerous •Activity can't be made reasonably safe even when reasonable
activities care is exercised
•not common usage in the community
1) Defendant is a merchant
2) Product must be defective - Manufacturing defect, design
defect, information defect
Products liability 3) Product not altered since it left Defendant's hands
4) Defendant only liable if Plaintiff made foreseeable use of the
product
Defense to strict
Comparative responsibility, assumption of risk
liability
Random topics
Plaintiff will win if use of property is free from unreasonable
Claim for nuisance Interference for enjoyment use of land to an unreasonable degree
use
Vicarious liability flows from relationship between the 2 of
Vicarious liability Victim sues active tortfeasor AND sues 2nd Defendant
them
Liable if under scope of employment
Vicarious liability - 1) If job uses force (bouncer)
Employer/Employee 2) Job engages in friction/tension (repo man)
3) Done in a misguided effort to advance employers purpose
Vicarious liability -
No vicarious liability except to invitees on property if hurt by
Hiring party and an
independent contractor or if independent contractor engaged in
independent
inherent dangerous activity
contractor
Vicarious liability - Exception: If lend car to do errands, vicarious liability under
auto owner/driver Auto ownder not generally liable for auto driver principle/agent theory
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Torts Outline
Topic Definition Comment
Random topics (continued)
Vicarious liability - Parents not liable for torts of kids except in negligent situations
parents and kids (parent leaves gun and kids takes and shoots)
refers to the deprivation of the benefits of a family relationship
Loss of consortium due to injuries caused by a tortfeasor.
Dealing with commercial transaction (usually with the purchase of Someone lied on purpose, I fell for it based on what they
Tort of Fraud
an item) said and I suffered a loss
Tort of malicious The filing of a lawsuit for an improper purpose, and without
prosecution grounds or probable cause.
defendant is liable to pay damages in tort for actions intended to
Inducing a breach of
interfere with the plaintiff's contractual relations with a third
contract
party.
1) Intrusion upon seclusion
2) Public disclosure of private facts
Invasion of privacy 3) Appropriation of plaintiff's name or likeness for commercial
purposes
4) Publication putting plaintiff in a false light
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