Torts I Outline by frenchieonthego


                                Law School Legends
                               Professor Richard Conviser

I.   Intentional Torts

        A. General Points

               1. Super-sensitive plaintiff – Do not take the super-sensitivities into
                  account. Deal with plaintiffs as if they are average persons.

                         a. Exception – Where the defendant in fact knows of the

               2. Everybody is liable for intentional torts!

               3. Transferred Intent Doctrine – Operates in two ways:

                         a. Intent can be transferred from person to person.

                         b. Intent can be transferred from tort to tort – Must fall within the
                            old trespass list of five torts:

                                i. Battery

                                ii. Assault

                                iii. False Imprisonment

                                iv. Trespass to Land

                                v. Trespass to Chattels
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         B. Battery – A harmful or offensive contact with plaintiff’s person.

                1. Offensive Contact – Unpermitted contact.

                2. With plaintiff’s person – We are talking about more than just touching
                   the body of the plaintiff. If you touch anything connected with
                   plaintiff’s person, this is enough.

         C. Assault

                1. Apprehension – Three ways to test on apprehension requirement

                        a. Must be reasonable.

                        b. Do not confuse apprehension with fear or intimidation.

                        c. Apparent ability is all that is necessary.

                2. Immediacy

                        a. Words alone are not enough.

                        b. Words coupled with conduct.

                        c. Words can undo conduct and any reasonable apprehension.

         D. False Imprisonment – A sufficient act of restraint in a bounded area.

                1. Sufficient Act of Restraint – Common sense fact analysis.

                        a. Threats are enough. You do not need the actual application of

                        b. An “act” of restraint can consist of inaction. In order for this to
                           happen, you have to find such that the defendant has an
                           obligation to act.

                        c. Plaintiff must know of the confinement at the time.

                2. Bounded Area

                        a. An area is not bounded if there is a reasonable means of
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                       b. The plaintiff has to know about the reasonable means of escape.

         E. Intentional Infliction of Emotional Distress – Outrageous conduct and

                1. Outrageous Conduct – It really has to be OUTRAGEOUS! The
                   conduct must be very extreme.

                       a. Look at the type of plaintiff you have – Young children, elderly
                       persons, pregnant women, adults with supersensitivities that
                       defendant knows of.

                       b. Conduct is continuous.

                2. Damages – Must show substantial emotional distress.

         F. Trespass to Land – The defendant has invaded plaintiff’s land.

                1. Physical Invasion

                       a. Does not require that the defendant actually go onto the land.

                       b. Some physical object does have to go onto the plaintiff’s land.

                2. Plaintiff’s Land

                       a. Includes more than the surface of the property. It includes the
                          space going up and down from the surface for a reasonable

         G. Trespass to Chattels and Conversion

                1. Which are you going to use?

                       a. If there is a lot of damage, it is conversion.

                       b. If there is only some damage, it is trespass to chattels.

                3. Two types of damage:

                       a. Physical damage or destruction

                       b. Dispossession
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II. Defenses to Intentional Torts

         A. Consent

                1. Plaintiff must have capacity.

                2. Determine if there was consent

                       a. Express consent – Words were used.

                       b. Implied consent

                               i. Apparent Implied Consent

                                       a) Custom and usage

                                       b) Plaintiff’s conduct

                               ii. Implied by law

                3. Determine if defendant has exceeded the boundaries of the consent

         B. Defense Privileges – Self Defense, Defense of Others, Defense of Property

                1. The timing requirement must be satisfied – The tort against which you
                   are defending is now occurring or is just about to occur.

                2. Make sure that the defense test is satisfied – All you need is a
                   reasonable belief that a tort is being committed.

                       a. General Rule – There is no duty to retreat before using self

                       b. Exception (strong modern trend) – Before you use serious
                          force, you should retreat if you can do so safely and are not in
                          your own home.

                3. You cannot exceed the boundaries – You cannot use too much force.

                       a. Proper Force Rules

                               i. For self defense and defense of others you can use
                                  reasonable force including deadly force.
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                                 ii. For defense of property you can use reasonable force,
                                     but never force that will cause serious bodily injury.

         C. Necessity

                1. Can only be used where the tort is a property tort.

                2. Determine if it is a public necessity case or a private necessity case.

                         a. Public necessity – For the benefit of many and is an unlimited

                         b. Private necessity – For the benefit of a limited number of
                            people. The defendant will be liable for any damage caused.

III. Plaintiff’s Dignitary Interests

         A. Defamation – Deals with injury to the plaintiff’s reputation.

                1. Prima Facie Case

                         a. Defamatory statement about this plaintiff

                                 i. Defamatory Statement

                                        a) Requires a defamatory assertion of fact.

                                        b) If it is not clearly defamatory on its face and/or
                                           does not clearly refer to the plaintiff on its face,
                                           the plaintiff will have to bring in additional
                                           evidence to make those points.

                         b. Publication

                                 i. There must be a communication to a third person.

                                 ii. The communication may be made either intentionally or

                                 iii. The third person must be capable of understanding the
                                      defamatory content.
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                      c. Injury to Plaintiff’s Reputation

                              i. Injury is presumed for all writings.

                              ii. Injury is presumed for slander per se; otherwise, it is not.
                                  In that case, the plaintiff must prove a money injury to
                                  prove injury to reputation.

                                      a) Slander per se categories

                                               1) Any defamatory statement that goes to
                                                  the plaintiff’s business or profession.

                                               2) Any statement attributing criminal
                                                  activity to the plaintiff.

         B. Defenses to Defamation

               1. Consent

               2. Truth – It is a true statement.

               3. Absolute and qualified privileges – Where from a societal standpoint we
                  want people to speak out without worrying about defamation liability.

                      a. Absolute Privileges

                              i. Communications between spouses.

                              ii. The three governmental branches – executive, legislative,

                      b. Qualified Privileges – Can be lost if abused. If we would like to
                         encourage this type of communication, give defendant a
                         qualified privilege.

         C. First Amendment

               1. The First Amendment is at issue when the matter is of public interest.

               2. If the First Amendment applies, we add two prima facie case
                  requirements and subtract one defense.

                      a. Extra prima facie case requirements
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                               i. Falsity – Plaintiff must prove that the statement was

                               ii. Fault – The plaintiff must prove that the defendant was
                                   at fault.

                                       a) Three types of fault

                                               1) Negligent

                                               2) Reckless

                                               3) Intentional

                                       b) Public Figure Plaintiff – Must show intentional
                                          or reckless tortious conduct in order to recover.
   `                                      Negligence is not enough.

                                       c) Private Person Plaintiff – Can recover by showing

                       b. Subtract defense of truth

         D. Invasion of Right of Privacy

                1. Appropriation by the Defendant of Plaintiff’s Name or Picture for
                   Defendant’s Commercial Advantage.

                       a. Commercial Advantage – Limited to the advertisement or
                          promotion of goods or services.

                2. Intrusion by Defendant into Plaintiff’s Privacy or Seclusion

                       a. Common sense fact analysis – Would it be objectionable to the
                          reasonable person?

                3. Publication of Facts Placing Plaintiff in a False Light

                       a. Where a statement has been widely disseminated that casts the
                          plaintiff in a negative, false light, but it does not quite amount
                          to defamation.

                4. Publication of Private Facts about Plaintiff
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                        a. Would an average reasonable person object to wide
                           dissemination of these facts? Are the facts sufficiently private?

         E. Defenses to Invasion of Privacy

                 1. Consent

                 2. The Defamation Privileges – Absolute and qualified privileges apply to
                    the publication branches.

IV. Negligence

         A. Prima Facie Case

                 1. Duty

                        a. Foreseeable Plaintiff – Duties of care are only owed to
                           foreseeable plaintiffs.

                               i. Unforeseeable Plaintiff Fact Pattern – The defendant
                                  will act negligently towards a clearly foreseeable plaintiff,
                                  which ultimately injures someone else.

                                       1) Andrews Approach – Everybody is a foreseeable

                                       2) Cardozo Approach – (Majority Rule) Whether or
                                          not the person is within the foreseeable zone of

                        b. Standard of Care

                               i. The Reasonable Person Standard

                                       1) Objective Test Standard

                                               a) We invent a hypothetical reasonable

                                               b) We assign to this hypothetical person
                                                  traits and characteristics.
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                                c) Measure what the defendant did against
                                   what we would have expected our
                                   hypothetical person would have done.
                                   Do not look at the defendant’s own
                                   personal traits and characteristics.

                 ii. The Children Standard

                        1) Children under four are deemed incapable of

                        2) Look to see what would have been done by a
                           child of like age, intelligence, and experience.

                                a) Exception – Where the child is engaged
                                   in an adult activity, the reasonable person
                                   standard applies.

                 iii. The Professionals Standard

                        1) A reasonable professional in the same or similar
                           community standard.

                        2) Specialists – Take expertise into account.

                 iv. Common Carriers and Innkeepers

                        1) Held liable for even slight negligence to
                           passengers and guests.

                 v. Owner-Occupier Standards

                        1) Make sure the defendant is an owner or
                           occupier, or a person who is in privity with one.

                                a) Privity Examples – family members,

                        2) Did the injury occur on or off the land?

                        3) Assume injury is on the land.

                                a) Threshold inquiry – Is plaintiff an
                                   undiscovered trespasser?
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                                i) If so, there is no duty owed to an
                                   undiscovered trespasser. This
                                   means that there is no standard of
                                   care. They always lose.

                         b) If the plaintiff is any other kind of
                            plaintiff (discovered trespasser, licensee,
                            invitee), ask what caused the injury. Was
                            it an activity or a dangerous condition?

                                i) Activity Standard – This is an
                                   ordinary negligence case with a
                                   reasonable person standard.

                                ii) Dangerous Condition Standard –
                                    Plaintiff’s status is relevant. The
                                    owner-occupier will owe different
                                    kinds of plaintiffs a duty with
                                    regard to different types of
                                    dangerous conditions.

                  4) Types of Plaintiffs for Dangerous Condition

                         a) Discovered Trespasser – Owner-occupier
                            is responsible for artificial conditions
                            involving a risk of serious injury that he
                            knows of.

                         b) Licensee – Someone who is on the land
                            for his own purpose. Owner-occupier is
                            responsible for dangerous conditions that
                            he knows of.

                         c) Invitee – Someone who is on the land for
                            the purposes of the owner-occupier.
                            Owner-occupier is responsible for
                            dangerous conditions that he should
                            know of. There is a duty to make a
                            reasonable inspection of the premises for
                            the benefit of invitees.
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                   vi. Statutory Standard of Care

                          1) Two-part Test

                                 a) Plaintiff must fall within the protected

                                 b) Statute must be designed to prevent this
                                    kind of harm.

                          2) If the statute is inapplicable, apply another

                          3) If the statute does apply and has been violated,
                             this means that there is “negligence per se.” If an
                             applicable statute has been violated, there will be
                             a conclusive presumption of negligence on the
                             defendant’s part.

                          4) Exceptions

                                 a) Where compliance would be more
                                    dangerous, non-compliance is excused.

                                 b) Impossibility.

             c. Miscellaneous Duty Problems

                   i. Affirmative Duty to Act

                          1) General Rule – There is no affirmative duty to

                          2) Exceptions

                                 a) Special relationship between parties –
                                    family members, employers and
                                    employees, common carriers and

                                 b) Where there is a duty to control the
                                    conduct of third persons
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                                                i) Where you have the right and
                                                   ability to control the third person;

                                                ii) You know of facts that should get
                                                    you to do that.

                         ii. Negligent Infliction of Emotional Distress

                                1) Plaintiff must suffer some physical injury.

                                2) Plaintiff must be within the target zone of
                                   defendant’s negligent conduct.

          2. Breach – Negligent Conduct

                a. Res Ipsa Loquitur – The facts will make clear that the plaintiff
                   does not have enough solid, hard evidence to establish negligent
                   conduct on defendant’s part.

                         i. The Probability Test

                                1) This usually would not happen unless someone
                                   was negligent.

                                2) It was probably this defendant that was negligent.
                                   This is most often proven by showing the
                                   defendant had exclusive control of the
                                   instrumentality causing the injury.

                                3) The plaintiff must be free of contributory

          3. Causation

                a. Actual Causation – The true causation part of the analysis.
                   Look at the facts and ask yourself whether or not the
                   defendant’s negligent conduct actually cause the injury.

                         i. “But For” Test – But for the defendant’s negligent
                            conduct, would this injury have occurred?

                                1) If the response is negative, the plaintiff is almost
                                   always going to lose.
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                              2) Sometimes, though, there is actual causation or
                                 the strong probability of it. Therefore, use
                                 another test.

                       ii. Substantial Factor Test – Defendant’s conduct was a
                           substantial factor in causing injury.

                       iii. Alternative Causes Test – There are two or more
                            negligent defendants, but there is uncertainty as to
                            which one caused the injury.

               b. Proximate Causation – A way for the jury to let a negligent
                  defendant who actually caused an injury off based on lack of

                       i. Definitions

                              1) Direct Cause Case – An uninterrupted chain of

                              2) Indirect Cause Case – Intervening act or event
                                 that combines with the first negligent act to
                                 cause the resulting injury.

                       ii. Proximate Causation Rules

                              1) If the result was unforeseeable, then let the
                                 defendant go.

                              2) If the result was foreseeable, then hold the
                                 defendant liable.

                                        a) Exception – If, in an indirect cause case,
                                           the intervening act was an unforeseeable
                                           intentional tort or crime, let the
                                           defendant go even though the result was

          4. Damages

               a. Take the plaintiff’s property as you find it.
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V. Defenses

        A. Contributory Negligence – In a contributory negligence state, plaintiff’s
           contributory negligence completely bars a recovery.

        B. Comparative Negligence – In a comparative negligence state, a plaintiff’s
           contributory negligence lowers the amount of recovery.

                1. Partial Comparative Negligence State – You will not achieve an award if
                   you are more negligent than the other party.

                2. Pure Comparative Negligence State – You can achieve a recovery even if
                   you were more negligent than the other party.

        C. Assumption of Risk

                1. Implied Assumption of the Risk

                        a. You knew of the risk.

                        b. You voluntarily proceeded in the face of it.

                2. Last Clear Chance Doctrine – Plaintiff is contributorily negligent. If
                   plaintiff is contributorily negligent, and the defendant still has the last
                   clear chance to avoid the accident and does not take it, the plaintiff will
                   be forgiven his earlier contributory negligence.

                        a. Last clear chance doctrine is only found in contributory
                           negligence state.

VI. Strict Liability

        A. Definition – Liability without fault on the defendant’s part.

        B. Specific Types of Cases

                1. Ultrahazardous Activities – If you are engaged in an ultrahazardous
                   activity, you are strictly liable.

                2. Animals – Liability for domestic pets only after the first bite. If it is a
                   dangerous animal, there is strict liability.

        C. Defenses
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                1. Contributory Negligence State

                          a. Knowing contributory negligence – Complete defense.

                          b. Unknowing contributory negligence – No defense in a strict
                             liability case.

                2. Comparative Negligence State

                          a. Knowing and unknowing contributory negligence – Offset the

VII. Products Liability

        A. Plaintiffs – Anyone in the foreseeable zone of risk.

        B. Defendants

                1. Negligence

                          a. Retailers and wholesalers – Almost never.

                          b. Manufacturers – Almost always.

                2. Strict Liability – Hold them all liable.

VIII. Vicarious Liability

        A. Respondeat Superior – Employers are liable for torts of employees committed
           within the scope of employment.

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