Torts Outline/ Notes

I. Liability based on Fault

A.
I. Intentional Torts
A. Intent—Is an element of all intentional torts; it is knowingly doing the harm
to another or knowing that with substantial certainty that the act will cause
the harm; intent is as to the injury, not the act that produces it.
1. Substantial certainty—is knowledge that a certain result or contact will
occur from the act; the result or harm is important not the act
2. Transferred intent—is the intent element that shifts from the intended
victim to another that is not.
a. Transferability can also be between all the original 5 torts with their
elements; thus intent of assault can be used for the intent of
battery.
3. Who may be held liable?
a. Insane person may be held liable
b. Minority—a person under age can be held liable
4. Mistake—does not negate intent
example: shooting a dog, but thought it was a wolf
B. Battery—is when one intentionally brings about a harmful or offensive
contact with another person, without that other person's consent.
1. Elements that need to be meet and applied on exams
a. Intentional— is knowingly or purposefully doing the harm to another
or knowing that with substantial certainty that the act will cause the
harm
b. Harmful or offensive
1. Harmful—is actual injury to the body
2. Offensive—is the causing of mental suffering or distress
What is offensive is judged by the community
c. Contact—
1. Can be the actual touching of another
2. Can be the touching of an intimate extension of the person
example: the taking of the plate w/o bodily touching
3. Can be the act that causes the collision to occur
example: moving the chair, which cause the woman sitting to
collide with the ground
d. Without consent—is being against the will of the other.
2. Egg skull rule— Defendant is liable for unforeseen injuries the
intended offensive touching produces
example: a person scrapes someone who is a hemophiliac; thus the
injury is normally minor but the extent would be greater
C. Assault— is the apprehension of an imminent intentional harmful
offensive contact(Battery)with the apparent present ability to carry it out.
1. Elements of Assault
a. Apprehension –perception that the act will occur
 b. Imminent—is something that could occur at any moment
c. Intentional— is knowingly doing the harm to another or knowing
that with substantial certainty that the act will cause the harm
d. Harmful/Offensive— is actual injury to the body; is the causing of
mental suffering or distress
e. Contact—
1. Can be the actual touching of another
2. Can be the touching of an intimate extension of the person
example: the taking of the plate w/o bodily touching
3. Can be the act that causes the collision to occur
example: moving the chair, which cause the woman sitting to
collide with the ground or like swerving to hit a car
f. Apparent Present Ability—is the actual clear and current power to
do the act.
example: if the person is too short to reach over the counter to hit
someone, this is not assault
D. False Imprisonment— is the intentional confinement of one against their
will and without the legal right to do so.
1. The elements of False Imprisonment are:
1. Intentional— is knowingly doing the harm to another or knowing
that with substantial certainty that the act will cause the harm
2. Unauthorized—is not having the legal right to imprison a person.
example: arresting for the wrong reason is FI
3. Restraint—is the knowing and conscious confinement of one in
fixed boundaries.
example: being unconscious is a defense to FI
a. A refusal to admit is not false imprisonment.
b. Confinement may be by words one is scared not to obey, not
only acts
c. Taking the means of one to leave away
4. Against will—is when the victim has not consented to it
E. Trespass to Land— is an intentional, unauthorized entry onto the land of
another, interfering with its exclusive possession
1. Elements:
a. Intentional— is knowingly doing the harm to another or knowing
that with substantial certainty that the act will cause the harm
b. Interference with—
c. Exclusive—
d. Possession—
F. Trespass to Chattels—
G. Intentional Infliction of Emotional Distress—intentional outrageous
conduct that causes severe distress.
1. Elements of IIED are:
a. Intentional—is knowingly doing the harm to another or knowing that
with substantial certainty that the act will cause the harm
--Recklessness is intent enough
 b. Conduct—is something that a reasonable person would find
offensive, not just want one person would; objective v. subjective
c. Outrageous—means beyond all bounds of decency: insults don’t
count
d. Severe—means intolerable by a reasonable person
example: intensity matters, an increase of a current condition is not
enough
e. Distress— means of manifesting some physical injury with
connection to the wrongful conduct
example: having a heart attack; vomiting from the distress
2. Bystander claims:
a. Defendant must know of bystander
b. Defendant must intend bystander’s harm or know that it is
substantially certain
-- Or bodily harm of bystander may be enough
H. Conversion
1. Nature of the tort
2. Effect of good faith
3. Necessity of Damage; Return of Chattel
4. Damages
5. What may converted
6. Who may maintain action
II. Privileges
A. Consent
B. Self-defense
C. Defense of Others
D. Defense of Property
E. Recovery of Property
F. Necessity
1. Public
a. Greater public good
2. Private
G. Authority of Law
H. Discipline
I. Justification

The blank was satisfied when blank did blank because of blank.

Reckless is intent enough for IIED only for this tort

INTENT—desire; know w/ substantial certainty, Transferred intent

Bystander Claims—D must intend bys. Harm or know that it is Subst. certain

IIED—fear of future acts, not be imminent, but must manifest physical

Insults not enough

Damages are inherent to A,B,FI,TtL

Car crash is not TtL unless you stay too long

Near ground is considered part of land, including diverting water

Leaving behind something can be a trespass

TtC must prove damages

Email server less access b/c of TtC

• Be able to recall or generate factors

– Consider the act (reprehensibility, outrageousness, intention)
– Consider the actor (role, capacity, knowledge, resources)
– Consider the victim (role, capacity, susceptibility)

To Elaborate on Reasoning
• Draw in other rules, such as transferred intent
• Use synonyms and antonyms
• Test by hypothesizing additional facts
• Test by hypothesizing contrary facts
• Consider policies like allocating risk (deterrence) or distributing loss
(compensation)
• Argue proportionality, equity, fairness, etc.
Consent—overt acts are good enough, words not always needed—is Obj. Standard
The privileges are affirmative defenses (which mean D must prove them)
In Sports, if it goes beyond the norm or code and custom of the sport
Consent may be implied in an emergency
Watch for consent to third parties must know their intent and who they are.

Protection of property by self not by devices

Recovery of Property
• Fresh pursuit
• Immediate vicinity
• Reasonable force
• Not capable of serious injury or death
OR
• Peaceable retaking

Privilege to Detain
• Reasonable grounds/probable cause
• Reasonably prompt action (fresh pursuit)
 • Reasonable investigation
• Reasonable demand for return
• Reasonable, non-deadly force
• Immediate vicinity

Necessity needs to have a public interest –emergency purposes—thus benefit for more
than one
Think about justice with dealing with natural causes like storms

Justification reasonable detain for protection of all and property—betterment of all

Elements of Negligence: Concentrate only on the first 3

1. Duty
2. Breach
3. Causation
4. Damages
Duty
• Depends on
– Foreseeability of harm
– Degree of harm
– Certainty of harm
– Closeness of connection with harm
– Moral blame
– Burden to defendant
– Consequence to community
– Availability, cost, and prevalence of insurance
• Often a judge (court), not a jury, question

Reasonable person is the universal person

The reasonably prudent person:
Universal
Objective
Generally known, not an expert
Informed by Customary
Model
The reasonably person takes on the characteristics of person in question, like blindness
RPP does not take on the abilities of the mentally disable
RP Person child standard unless inherently dangerous; if doing a adult action and is
held to the adult standard

Reasonably: Inspect; Warn; Train; Supervise

Possibilities are not enough, duty can change over time to adapt to new technologies
RPP is responsible to inspect thing seen on cars but not inner workings
Standard of care comes into play when it is dangerous or conforming to a better way
N does take into account emergencies
1. Trespass to chattels requires a dispossession of or harm to tangible personal
property that interferes with, but does not destroy, the chattel’s use.
Conversion requires the chattel’s effective destruction –the total deprivation of the
use requiring replacement of the chattel or the destruction of its substantial value.
2. Damages are presumed for the first four intentional torts: ABFi and TtL
3. TtL is the intentional Unauthorized Entry onto the Land of another. Anyone with the
right of possession may sue
4. One may defend property using reasonable force not likely to cause serious injury or
death. Unreasonable (excessive) force, or force likely to cause serious injury or
death may give rise to a tort liability.
5. If a person misrepresents the reason to consent, then there is still consent, so long
as the person’s conduct stays within the scope of the consent. Consent goes to
what is permitted, not why it is permitted.
6. One is permitted to use reasonable force in seld-defense upon a reasonable belief of
a threat. One may be mistaken when using reasonable force in self-defense,
so long as the mistake is reasonable.
7. The contact element of battery is satisfied by contact that is either harmful or
offensive including contact with something closely connected to the victim.
Although contact is required, humiliation or distress is sufficient harm or offense.
The contact need not result in physical injury.
a. Contact can include causing the contact with another object. Transfer of
contact.
8. Intent to commit any one of the 5 traditional torts will transfer to satisfy the intent
element of any the other five traditional.
9. IIED claim is an intentional or reckless tort based on outrageous conduct beyond the
bounds of all decency causing the severe distress
10. Proof of A requires Reasonable AI HOC
11. Public necessity authorizes emergency actions that destroy private property, not
inflict injury, for the greater public benefit. Public necessity defeats the intentional
tort rights to recover for the private properrty’s destruction. Private necessity is a
defense to an intentional tort claim, but damages must be paid.
12. Consent may be expressed by words or Communicative actions. Consent may be
implied from the knowledge, actions, and circumstances of the parties. Consent
may be implied from proceeding in the knowledge that a reasonable action is likely
to occur.
13. The mentally ill are capable of forming the intent necessary to commit an intentional
tort, even when they are deluded as to their reason or justification. Insanity may be
a defenes only when the person does not know
14. Intent with respect to intentional tort expect IIED is established by the desire to harm
or knowledge of substantial certaint of harm. Recklessness, meaning knowledge of
a high probability of harm, is not suffient.
15. On probable cause that the theft has occurred, a shopkeeper may use reasonable,
non-deadly forece to recover properry in fresh pursuit within or about the premises.
A S may not use Excessive force and may not unreasonalbly in vestigate,
embarrass , or detain but may be reasonably mistaken with pronbalbe cause
16. Consent is a defens to a claim of battery. A B is commitedd when one exceeds the
scope of
17. The restraint element of FI can be satisfied by a showing of actual physical restariant
or by circumstances creating an unreasonable risk of harm or loss if escape is
attempted. Inconvience is not enough. Unreasonable exposure to danger is.

• The professional standard is objective

• Special standards apply to professions
– May mean licensed or certified professionals
• Doctor, lawyer, nurse, accountant, architect, engineer
– Functional definition is specialized skills
• So may include trades like electrician, plumber, carpenter
• Just b/c a second doctor would have done it one way did not prove the standard
of care, you need to prove the rest of field of professionals do it.
• Having a national certification are held to anational standard
• Local practice you need a testifier from the local area to
• The court ruled that the doctor must use the reasonable patient standard in
notifiying of risk
• The patient can’t after the fact say they would not have consent, but must prove
they would not have gone forward. There is also a reasonable ppatient person
standard
• Basic claim
– Doctor must advise of material risks
• Need expert testimony as to what is material
– Patient must show causation
• This patient (subjective) rule
• Reasonable patient (objective) rule
– Risk must be realized
• No consent at all is still a battery
– Don’t need expert testimony
– Exceptions for:
• Pt knew or should have known
• Detrimental for physician to inform
• Emergency prevents informing
• Personal-interest claims
– Doctor must disclose unrelated economic and research interests
– Plead conversion, breach of fiduciary duty, and lack of informed consent
Violation of Statute
• Statute: a federal or state legislative enactment
– Negligence if within class and harm
• Ordinance: a city (municipal) legis. enactment
– Probably also negligence
• Regulation: an administrative (executive) rule
– Not always negligence
• Standard: an industry rule or custom
 – Admissible but only advisory
The P has to be in the class in the statute needed to be protected

A feathers weight can tip the scales in negligence claims

A unreasonable condition must exist long enough to be corrected before there can be
negligence
Determined time by look of the banana
If operating methods are dangerous then constructive notice need not be proved
Destructive of evidence
P must prove constructive notice

Res Ipsa Loquitur –D was in control of the barrel and had a duty to prevent it from
rolling out
1 Plaintiff cannot prove (and not responsible)
2 Defendant controls (exclusively?)
3 Event does not without negligence
Burden of proof can shift to multiple defendents
If other possibilities then RIL does not apply

Cause in Fact is actual—scientific issues; like the speed of a train; or can be by D

greatly increases the chances of injury
You must connect the act or condition that creates the probability, with the
result
Coincidence is not enough for cause
Must link the cause to the result and must be a direct link not casual
Traditional Rule: More than double or Reduction in more than cut in ½

Testifying in fed court for experts

Four Points:
1. Whether the theory employed by the expert is generally accepted by their
community
2. Whether it has been subject to peer review
3. Whether it can or has been tested
4. Whether the known or potential rate of error is acceptable

2 separate causes of negligence can recover from both or either but it is only a single
claim
 Where “but for” causation fails, ask if the misconduct is a substantial
factor, If a reasonable person would regard it as a cause
 Where two are independently negligent, one is the cause, and you cannot
tell which one, the causation burden of proof will shift to the defendants,
and both will be liable if they cannot determine which one was the sole
cause
Traditional rule is to find the exact D, but in a small industry the substantial suppliers
making up the majority of market share liability
 Factors of proximate cause
1. Time
2. Distance
3. Intervening events---natural or artificial
4. Foreseeability –was reasonable likely to result
5. Policy
First Building Rule—thus drawing a line to stop it from going on forever
Need to take the P as they are; Eggshell-Skull Rule
Directly Traceable Rule or Unbroken Sequence Rule; this entails Foreseeability;
basically a chain of events
Reasonable-Foreseeability Rule

Palsgraf case—think about bystander claims—where was the duty and care owned

Intervenes is does not cut of proximate cause

Superseding cause does cut it off has a separate event
Intervening acts of a third party could they be an unforeseeable event that cuts off the
negligence of the of the D
Basic rule
When a action that is interveneing and when that act is intentious malice that it cuts off
liability
Criminal acts don’t usually stop negligence when they are intervening
No duty on a private person to foresee a criminal act
Suicide is general an intentional act that breaks proximate cause
But unless irresistible impulse exception
The rescue doctrine permits an injured rescuer to hold liable the party whose
negligence necessitated the rescue
A rescuer must still show proximate cause by showing that the rescue was reasonably
foreseeable.
―Danger invites rescue‖
Firefighters rule
--professionals can’t recover under rescue doctrine
--they are handled under other means like workmens comp

Granting social host liability is liable for

This a minority rule—might be b/c of public policy
Dram shop Act liability
Commercial for serving the visible intoxicated person or a minor

Inter-generational liability is too far—thus proximate cause fails

Cuts off at first generation rule

Duty
Failure to provide a performance of a contract
Duties would be never ending, which would cause too many claims
Thus a flood gate argument

Failing to perform a contract owes no tort duties

Manufacturer owns a duty to those who they would reasonably foresee to use the
product
A manufacturer owes tort duties without privity.

Privity—is the relationship between the parties to a contract, allowing them to sue each
other but preventing a third party from doing so.
Companies ordinarily owe no tort duties for failure to provide utilities.
Unless it is misperformance
Attorneys are limited in tort based duties to their clients and not third parties

Mandatory schools probably owe a duty but not higher level education

Duty rises basis on the fact of invitee should be kept safe

Dangerous instrumentality
Reasonable care to fix the injury
Do not cause furtherance of injury when have the reasonability to

A spouse may owe a duty if they had knowledge and did not to prevent it
The rule is once a therapists knows or reasonable should know that harm but befall a
endangered party who is an identifiable party
No recovery for pure economic loss
If the client’s loss is only economic there is no claim; a need for physical damage, thus
this is a way for limiting recovery

Duty ordinary exists when

1. Affirmative negligent acts
2. Causing physical injury to person
3. Causing physical damage to property

Nonfeasance=no duty does not equal negligence

Misfeasance= duty and does equal negligence
Malfeasance= duty and is Intentional tort malicious intent

1st Boundary Contracts create the first boundary b/c there is usually only the contract
claim
Exceptions:
 Common carriers
 Misrepresentation or fraud (never intended to perform)
 Misfeasance rather than nonfeasance
 Professional negligence or malpractice
2nd boundary
Failure to act, generally no liability
Exceptions:
 Special relationships (carrier, keeper, custodian)
 Representation and reliance on it (voluntary undertaking negligently not
performed)
 Rendered helpless by instrumentality under D’s control
 Master (employer) or invitor (business)
 Control of third person (therapist and patient)
3rd boundary—Pure economic loss
 General rule: physical injury to the plaintiff or physical damage to the plaintiff’s
property must occur before plaintiff is allowed recovery for economic loss relating
to physical events
 Purpose of rule: pragmatic limitation on the widespread economic loss to others
which may sometimes occur, and even be foreseeable before it occurs
Now the last 2 boundary issues with dealing DUTY
-Emotional distress
-Unborn Children
A majority of states have replaced the physical impact rule with the physical
manifestation rule limiting recovery for negligently caused emotional disturbance to
instances where the disturbance causes a definite and objective physical injury

Negligence
D—public policy
B—science
CIF—science
PC—public policy
D—science

Elements of a Bystander Claim:

1. Closely related
2. Present at the scene, and watch it happen, not be turned away, or if they are
know what is going to happen
3. Serious distress
4. Not abnormal
Notes
• Distinguish direct victim from bystanders
– Direct victims involve direct duties
• Exceptions to physical manifestation:
– Negligent death telegram
– Negligently handled corpses
• Some states follow foreseeability test
– Zone of danger tests remain in other states
• Contemporaneous sensory observation

No claim for usually for babies not born alive—this rule has clarity
Can’t predict the potential earnings of unborn children, could look to parents for this

• Wrongful life: child’s claim for being born

– Not generally recognized (few allow)
– May be recognized for extraordinary expenses
• Wrongful birth: parents’ claim for birth
– Direct damages usually allowed

Reward judgment and identity in the blue books on exams

Duty is treated differently with premise liability theory

Invitee –reasonable care

Licensee–warn of known hidden dangers --WKHD
Trespasser—none (w/ exceptions)

Reasonable discovery duty and would a reasonable landowner discover that

If reasonable care if it reasonably discoverable

For injuries off the premises

• Basic no-duty rule
• Permutations:
– Falling trees:
• rural/urban or
• known decay
– Natural/artificial hazard rule
– Reasonable-precautions rule
– Normal-water-flow rule
– Travelers passing by

Trespassers
• Basic no-duty rule, with exceptions:
– No spring guns or traps
– Ordinary care regarding active operations, after discovery (discovered
peril rule)
– Tolerated intruders on well-worn paths: licensees?
– Protect foreseeable trespassers from high degree of danger

Invitess
• Nomenclature (all meaning the same thing)
– ―business visitors‖
– ―business invitees‖
– ―invitees‖
• Definition: on premises for owner’s present or future economic (pecuniary)
benefit
• Duty: reasonable care (inspect, protect, warn)
 • Status can change
– No taking shortcuts
Like when finished transaction for business then become licensee

Licensees
• Definition: present for own purposes
– Social guest is typical example
• Watch for incidental-service rule – some benefit to landowner does
not change licensee status
– Status can change
• Duty: warn of known hidden dangers

Avoid alleging “duty to prevent crime”

Protecting against violent crime

• Basic no duty rule
• Duty may arise by:
– Landlord on notice of repeated crimes
– Exclusive power to act to protect
– Landlord voluntarily assumed duty
– Warranty of habitability
– Basic foreseeability/ reasonable care rule

Adopting comparative negligence requires:

• Abolishing contributory negligence
• Abolishing last-clear-chance doctrine
• Abolishing joint-and-several liability
• Abolishing contribution actions
• Deciding whether to consider non-party fault
• Choosing pure or modified form
– Deciding whether to tell the jury about effects

One who consciously and voluntarily subjects him- or herself to a known risk of
injury will not have a tort claim for that injury, but… one who of necessity
encounters an uncertain risk cannot be said to have assumed that risk and,
instead, can maintain a tort claim for that injury.

Assumption of Risk
No duty
Except with contract of adhesion—take or leave it

Implied Assumption of risk may not be needed in comparative negligence jurisdictions

Knowledge and voluntary did the risk