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									Tort = 1) Injury to a P by a D 2) for which P is entitled to damages.
       Risk-spreading mechanism, or insurance whereby the actual cost, including liability for injuries, of
various lines of business becomes part of the price of that business‟s products, an insurance premium of sorts.


Prima Facie Case: Actor D is subject to liability to person P for negligence when –
   1. P has suffered an injury;
   2. D owed a duty to a class of persons including P to take care to not cause the kind of injury
   3. D breached that duty of care;
   4. D’s breach was the actual and proximate cause of P’s injury.

Injury: physical harm (bodily and tangible property harm), loss of wealth, emotional distress (not
       annoyance) (matter of fact)
    Physical harms: fatal and non-fatal contusions, lacerations, broken bones, internal organ damage,
       diseases and physical illnesses.
    Loss of Chance Doctrine: limited to medical cases and life/death (generally >50% chance)
           o Falcon v. Memorial Hospital (Woman died in child birth, 37.5% chance of surviving if she had
              received an IV.)
    Property Damage: land, structures and personal possessions.
    Pure Economic Loss: NO liability for economic loss if loss does not result from physical damage to
       property (even if the economic loss was foreseeable) unless:
           o (1) disproportionate sufferer, (2) clear and specific consequences for a specific group,
              (3) privity.
                   (Floodgate issue – too much liability for courts)
    Emotional Distress: may be recoverable. Pain and suffering, especially with physical harms, is

Duty: Question of law for judge (always in effect)
    Ordinary Duty: exercise reasonable care to avoid foreseeable harm.
         o P must prove D owed obligation to not cause the type of injury P suffered.
         o Old rule: Privity – no longer required.
         o Reasonable Foreseeability: unqualified duty to take reasonable care to avoid injury to
             others if a person with “ordinary sense” could foresee the possible danger and would take
             steps to avoid it.
    Affirmative Duty: generally no duty to rescue or protect.
         o EXCEPTIONS:
                  Common Carriers, Business Invitees, Voluntary Actors, Special Relationships (contract) -
                          Duty to take reasonable action to protect from unreasonable harm and render first
                            aid after reason to know they are ill or injured (Taco Bell, man faints, employees
                            don‟t help, faints again)
                  Imminent peril to P caused by D
                          Duty to make reasonable efforts to rescue (not necessarily accomplish)
                  Duty to Report: duty to report witnessing crime or child treated negligently
                  Good Samaritan statutes: immunize people from liability for negligence in rescuing
    Premises Liability: Possessor‟s duty to people on their land
           o Invitee - person who enters premise to do business
                  Duty to inspect for dangers, warn of hidden dangers, and protect from known harm.
                          Heightened duty from derived economic benefit
           o Licensee - enters with permission but no business transaction (reasonable care)
                  Duty to refrain from willfully and wantonly injuring; must warn of danger on premise
                          Willful and wanton: awareness of the risk and intentional disregard for the risk
           o Trespasser - person who enters w/o license or inducement
                  Refrain from willfully and wantonly injuring them
                  Discovered Trespassers: limited duty; warn of natural or artificial dangers.
                  Child trespassers: duty to take reasonable care to protect from injury.
                          Attractive Nuisance: weigh utility against harm – usually liable; must draw child
                            to property; must be inherently dangerous

Breach: (D must breach the specific duty owed to P; see Palsgraf)
    Restatement (Third); Factors considered for breach:
          o Foreseeable likelihood action will cause harm
          o Foreseeable severity of the harm
          o Burden of precautions to eliminate or reduce harm
    Hand Rule: B<PL; (ex ante) (B=burden of precaution, P= probability of injury without precaution,
      L=gravity of injury) when B is lower than PxL, B should be/have been taken and D is liable. If burden
      is great and probability of injury is low, D doesn‟t need to take precaution.
    Disproportionate Cost Theory (Lord Reid):
          o If risk was very small – no duty to take precaution
          o If risk was „real‟ but still small – obligated to take precautions unless taking precautions would
              impose burden disproportionate to risked harm
          o If risk was material or substantial – obligated to do everything possible to prevent
                   Even expensive precautions to avoid modest loss
          o Disproportionate cost theory tries to recognizes safety is more important than $
    Judicial determinations: breach is usually determined by jury (matter of fact)
          o Insufficient Evidence: grant summary judgment for D
          o Unforeseeable Danger: no liability so long as “reasonable care” taken to prevent harm
    Ordinary Care: standard of care Reasonable Person would employ (usual burden of care)
          o Time Slice – if at any point care falls below reasonable, D is liable
          o Spectrum: avoid reckless injury  avoid gross negligence (good Samaritan laws)  ordinary
              care  extraordinary care  strict liability
    Reasonable Person: Ordinarily prudent person acting reasonably under the circumstances.
      Meant to be objective – does not vary with D’s intelligence or ability.
          o Illegal = Unreasonable
          o Subjectivity: does not matter if D attempted to be reasonable.
    Children: considers age, intelligence, and experience.
          o Majority Rule: liable if they fail to exercise a degree of care that is reasonable of similarly
              situated children (generally not found liable under 4 years)
                   Exception: children engaging in adult activities are tried as adults, i.e. driving
          o Minority Rule; Tender Years Doctrine: Children under 7 y.o. are incapable of negligence
          o Negligent Supervision: Parents aware of similar prior conduct and had opportunity to control.
    Disabilities: only physical disabilities will sometimes be taken into account.
      Industry Custom: evidence of reasonable care, but is not dispositive
          o T.J. Hooper Rule: Industry custom in insufficient to prove reasonableness
          o Anti-T.J. Hooper Rule: Custom is dispositive in the trained professions (law, MEDICINE)
                  Rationale: Reasonableness can‟t be determined without expertise.
          o Which Rule Applies?: T.J. Hooper rule applies in most jurisdictions to everything outside of
             trained professions. Anti-T.J. rule applies in most jurisdictions, but only to medicine.
          o Prudent Patient Standard: applies only to informed consent cases
                  Asks what patient would need/want to know, not what reasonable doctor would disclose.

Actual Cause:
    But-for Cause: but for D’s conduct, event wouldn’t have occurred
          o Coincidence doesn‟t count.
    Multiple Necessary Causes: applies if each cause is necessary but not sufficient on its own
          o Majority Rule: multiple causes each of which was necessary but not alone sufficient to cause the
               harm – D‟s are all held jointly and severally liable.
                    Test: But for each actors negligence there would be no harm.
          o Joint and Several Liability: P may recover up to 100% from any D, but no more that 100%
               in total from all D’s.
          o Breach of Affirmative Duty: car going 6 mph hits electric pole meant to withstand 10 mph that
               falls; driver and electric company both liable.
          o Contributory Fault: fact finder can treat P’s faulty conduct as but-for cause.
    Multiple Sufficient Causes: each factor alone sufficient to cause particular injury – applies when two
       or more causes merge that can’t be differentiated. (Each alone is sufficient but not necessary.)
          o Substantial Factor Test: Was the act a substantial factor in causing the harm?
          o Toxins: must prove chemical alone sufficient for harm & actually caused P‟s harm
    Multiple Identical Acts: when at least two negligent actors independently cause same injury to P, but P
       can‟t determine which is actually responsible
          o Shifts burden of proof to D(s) – must prove own negligence not actual cause
                    Prevents conspiracy of silence
          o Limiting Principles: (1) Each D acted in identical negligent manner toward P; (2) A single D was
               the actual cause of injury to P; (3) No other possible tortfeasor involved; (4) P‟s inability to
               prove which D is responsible is not due to P‟s lack of diligence.

Proximate Cause: is casual relationship fortuitous? Needed to cut off liability somewhere.
    Foreseeability: (primary test) is P’s injury the reasonably foreseeable consequence of D’s conduct?
         o Scope of Risk/Risk Rule: the injury must be the realization of one of the risks that leads the
            law to deem the conduct careless in the first place.
                 Wide: the specific way the injury occurred is not foreseeable, but the risk of the
                    class of harms to which the injury belongs is foreseeable
                 Narrow: the specific manner by which the injury occurred must be foreseeable
         o If P’s injury is…
                 beyond any reasonable expectation  D is not liable
                 foreseeable but more serious than anticipated  D is still liable (eggshell P)
                 a foreseeable type of harm  probably liable (see Scope of Risk)
    Directness: (generally abandoned for foreseeability) act is direct cause of harm
    Natural and Ordinary; One-leap test: harm is one leap away from act
      Intervening and Superseding Cause: unforeseeable independent or willful (and wrongful)
       intervention by 3rd party that breaks chain of probable cause
           o TEST: Remote actor D is liable if any of these apply:
                  1. There is a basis for attributing the immediate injurer’s conduct to a remote D (e.g.,
                      a conspiracy)
                  2. The remote D was already tortious with respect to P, irrespective of remote actors
                  3. The remote D was only wrongful in failing to enable the immediate actor, but D
                      owes P an affirmative duty to prevent harms produced by the immediate actor
           o Criminal Acts: unlawful or malicious acts by a 3rd party are generally deemed unforeseeable
           o Still Unfolding: if events that arise from the D‟s negligence are still unfolding when P is harmed,
              D is liable regardless of other causes
           o Pay special attention to the nature of the remote D’s wrongful act – it needs to be wrong
              with respect to P regardless of the intervening actor’s act.

Special cases of negligence:
    Res Ipsa Loquitur: jury may infer negligence merely from incidence and P’s relation to it.
           o Requirements: (negligence without proven breach)
                    Event doesn‟t ordinarily occur without negligence
                    Caused by agency or instrumentality likely within exclusive control of D
                    P didn‟t in any way contribute to the incident that brought about harm
                            If P contributes after incident, possible contributory negligence (or bar to claim)
           o Exceptions: complex procedures that go badly without fault; evidence that D wasn‟t at fault
           o Rationale: shifts burden of proof, D likely has all evidence
           o Defense: prove actual cause (if not negligence), prove reasonable care
    Negligence Per Se: violation of statute satisfies duty and breach; need only prove injury and cause
           o “Rebuttable presumption of negligence”
           o Elements: statute must protect a class of persons from a type of injury/hazard (not licensing)
           o Policy: harm must be of the type statute was intended to prevent (issue of law, not fact)
           o Applicable Rules: conduct rules promulgated by legislature
           o Exceptions: (defenses)
                    Children: not necessarily expected to comply with statute
                    Safer Act: evidence violation occurred in favor of an even safer course of conduct
                    Unable to comply: despite reasonable diligence/effort (e.g. good fake i.d.)
    Strict Liability: duty and breach not explicit factors; need only prove injury and cause
               1. Generally: (1) D intended to do something; (2) P was injured; (3) D‟s act was the but-for and
                   proximate cause of the injury. (Strict liability is imposed by judge as matter of law)
               2. Effect: No regard for reasonable care, and sometimes foreseeability as well
               3. Comparative fault is a possible defense in a minority of jurisdictions
           o Animal Bites:
                    Common Law: owners of animals are strictly liable for harms caused, usually regardless
                       of trespass, if owner knows or should know of viciousness
                    Domestic Animals: the owner of a domestic animal is liable when (1) that person had
                       knowledge (or should have had knowledge) that the animal has a tendency to be vicious,
                       and (2) the animal bites or injures another person, even if D employed all reasonable
                       measures to control the animal. D may not be liable for the “first bite” of the animal. If D
                       had no idea that the animal had any propensity to cause harm and species known to be
                       docile; D is likely not liable.
         Wild Animals: strict liability for D’s animal – no matter how docile, etc.
o   Trespass to Land: Lawful Possessor has (1) the right to enjoy their property without harming
    others and (2) the right to exclude people and things.
         Requirements: D intentionally interferes with possessor‟s right to exclusivity
                 Any physical invasion no matter how small is trespass
                 Ad coleum trespass can occur above, upon, and beneath the surface of the earth
                 Intention to act/be in a specific place (regardless of awareness of trespassing)
                 If unintentional/involuntary or through necessity – no trespass
         Lawful Possessors (owner, tenants) are only Plaintiffs, invitees and licensees cannot sue
         Other Trespasses: failure to leave; failure to remove an object
         Injury/Damages: If harm can be connected to trespass, trespasser will be liable for harm
o   Nuisance:
         General rule: Elements –
                 Intentional; voluntary: knows or should know it will interfere
                 Harm goes beyond what ordinary, reasonable person can be expected to endure.
                 Act is continuous
         Determining Harm: 5-Factor Test – (1) character of the neighborhood; (2) nature of the
            thing complained of; (3) frequency of the intrusion; (4) effect on P‟s use and enjoyment
            of property; (5) location of the nuisance
         Lawful Possessors (owner, tenants) are only Plaintiffs, invitees and licensees cannot sue
         Private vs. Public:
                 Private – civil wrong, individuals have standing to bring claim
                 Public – state brings claim (if individuals – disproportionate sufferer)
         Damages: usually injunction; P‟s benefit weighed against D‟s hardship
         Coase Theorem: Assign liability to the least cost avoider (makes most profit).
                 Theory: All torts are reciprocal nuisances. In a world without transaction costs, it
                    does not matter which party is initially awarded legal entitlement – the result will
                    always be most efficient allocation.
                 Real World: Transaction costs do exist. Coasean bargaining is rarely applicable
                    to real-world problems. Courts rarely know which allocation is most efficient.
                 Calabresi: Bargaining power imbalances make negotiation difficult.
o   Ultra-hazardous Activity: If D maintains a risk that is inherently dangerous – strictly liable
         Rationale: cost shifting to D for asymmetrical risk (D should bear costs of risk)
         Exceptions: intervening acts (rare); proximate cause issues; pure economic loss
         Defenses: comparative negligence (ignored warning); assumption of risk
         Restatement (Second): 6-Factor Test (need several but not all):
                1. Existence of a high degree of risk of some harm to P or property
                2. Likelihood that the harm that results will be great
                3. Inability to eliminate the risk by the exercise of reasonable care
                4. Extent to which the activity is uncommon
                5. Inappropriateness of the activity to the place where it is carried on; and
                6. Extent to which its value to the community is outweighed by its danger
         Restatement (Third): an uncommon activity creating a foreseeable and significant risk,
            even when reasonable care is taken
o   Vicarious Liability: when an entity is liable for the tortious acts of another acting on its behalf
         Direct Liability: (e.g, employer acts wrongfully by failing to screen or supervise)
                  Respodeat Superior: when an employer is held liable for an employee‟s negligence
                       Employer Liable when employees engage in torts that are committed within
                         the “scope of employment” as an agent of the employer
                       Scope of Employment: during business hours, activity endorsed by employer
                       Rationale: employer is least cost avoider; can spread loss
                  Apparent Authority: (e.g. parents are sometimes liable for their children, or by statute)

   Products Liability: Strict liability to manufacturer for injuries caused by defective product that reaches
    market without substantial changes; regardless of precautions taken or lack of privity
       o Implied Warranty: Promise that goods are safe for intended and ordinary use (can be waived)
       o Rationales:
                Obligation: manufacturer owes duty to create safe product
                Deterrence: manufacturer in best position to ensure safety; extra incentive
                Compensation-Insurance: manufacturer in best position to spread cost of injury
                Causation-Liability: product caused injury – liable
                Litigation-Structure: manufacturer has more resources/consumer no evidence
                Judicial Candor: open and direct structure more efficient
       o Elements: P has injury, caused by product, defective at sale, sold by commercial seller D
               1. Injury: physical harm to P (owner or bystander) or P‟s property, not product itself
               2. Seller: manufacturer, seller, distributer, retailer (involved in bringing product to market)
               3. Product: does not include: real estate, body parts, live animals, text (books) (maps may
                  be considered), used products, intangibles/services (electricity), drugs (reasonable tests)
               4. Valid Cause: product is defective at time of sale and defect caused P‟s injury
       o Defects: 3 Categories
                Manufacturing Defect: flaw falling outside of product specifications
                       Elements:
                              1. Product diverges from the manufacturer's own specifications
                              2. Must have been in manufacturer‟s control when the defect arose
                              3. Established by comparing defective product to products manufactured
                                   properly to specifications
                       Can occur anytime before sale.
                Design Defect: flaw inherent in the specifications of the product (anywhere from
                  inconsequential to function to essential in product function)
                       Criteria: whether design is defective –
                              1. Significance of risks posed by design
                              2. How ordinary customers would expect product to function
                              3. Feasibility of safer alternative design
                       Risk-Utility Rule: defective if risks outweigh utility (even expected risk)
                              o Wade‟s 7-Factor Test (2nd Restatement):
                                        (1) usefulness and desirability of product; (2) likelihood and
                                            magnitude of potential injury; (3) safer product available; (4) can
                                            eliminate problem w/o hurting usefulness or price increase; (5)
                                            ability to avoid harm w/ user care; (6) user‟s aniticpated awareness
                                            of dangers; (7) manufacturer‟s ability to spread cost
                Failure to Warn: safety requires product be sold with warning, but warning inadequate
                       Includes omission, mislabeling, unreadable warning, (foreseeable misuse)
       o Causation: Defect does not need to be sole cause of injury, yet still but-for and proximate
           o Defenses:
                   Contributory negligence: P acts unreasonably in a casually relevant way to the harm
                   Comparative responsibility: P‟s conduct must be but-for cause of injury
                   Implied assumption of risk: (no express assumption in most jurisdictions)
Defenses: limited to reasonable actions
    Necessity: limits possessor’s right to exclude trespassers acting reasonably and out of necessity
           o Rule: Is the person trespassing? If yes, was it an emergency? Did the trespasser act reasonably?
              Should the possessor have known it was an emergency?
           o Incomplete Privilege: trespasser must avoid foreseeable harm, must compensate for damages
           o Public Necessity: privilege to destroy private property w/o sanction (maybe compensation)
    Emergency: defense against negligence for split-second decisions in emergencies not caused by P
    Consent: immunity from liability within the scope of the consent
           o Express v. Implied: specifically stated v. reasonably inferred
           o Scope Factors: time, place, purpose, and context of the consent
           o Capacity to Consent: Only valid if given knowingly and voluntarily
           o Mistaken Consent: liable unless erroneous believe is induced by possessor‟s actions
    Contributory Negligence/Comparative fault: P is also prima facie negligent
           o These claims are barred if D acted recklessly or intentionally.
           o Contributory Negligence – (outdated) P at all negligent – D excused from all liability
           o Pure Comparative Fault: (13 states) P can recover from D even if P is 99% liable
           o Modified Comparative Fault: (33 states) if P is < 50% responsible, D liable, > 50% barred
                   Usually aggregated, if P‟s 40% responsible, D1 30%, D2 30%, P still gets 60%
           o Failure to mitigate: (seat belt defense) failure to mitigate as affirmative defense to limit damages.
           o Last Clear Chance: whoever had last opportunity to prevent harm should be liable
    Joint and Several Liability: when D’s act in concert or P’s injury is indivisible. (100% from any D)
    Assumption of the Risk: a competent P who appreciates the riskiness of an activity and voluntarily
      undertakes it is barred from recovering against D for lack of breach (not including recklessness)
           o Express: explicit consent to take on risk – usually a waiver
                   Valid Waiver/Exculpatory Agreement:
                           Freely and fairly made (unambiguous), and;
                           Parties are of equal bargaining power, and;
                           Activity not against public policy (can‟t waive all liability)
                   Voidable: take-it-or-leave-it, disparate bargaining power, no negotiation, unique service
           o Implied: usually engagement in recreational activities (VOLUNTARY)
     Type of Activity:          Reasonable                Reasonable                 Unreasonable
       How it is undertaken: Reasonably                   Unreasonably              N/A
       Effect:                  Assumption of Risk        Comparative Fault         Comparative Fault
       Result                   See below                Analyze as CF             Analyze as CF
                  Reasonable activity undertaken reasonably: assumption of risk=bar to recovery or CF
       Immunity: complete defense, no duty owed
          o Spousal: only liable for recklessness or intentional torts
          o Parental: not liable unless…
                  Cruel and outrageous/willful and wanton treatment, or;
                  Both P and D are at age of majority
                  (Privilege of Reasonable Parental Discipline)
           o Charitable: blocks respondeat superior for negligence claims; still liable for recklessness
                 Does not apply if not benefiting from the organizations activities (e.g. hit by ambulance)
           o Sovereign: Federal and State Government immune unless covered by FTCA (not cities)
                 FTCA grants suits where there is a private equivalent (e.g. post office)
                 Immune when acting in a discretionary role (policy and day-to-day decisions)
                 Westfall Act: cannot recover from employee acting within scope of employment, but can
                    recover from government (employee must invoke this for immunization)
                 Public Duty Rule: no duty to protect any one person (for cities/municipalities)

                                          INTENTIONAL TORTS

    Prima Facie Case: Actor D is liable to person P for battery if:
            1. D acts: does not include accidents w/o intent or other people using actor‟s body.
            2. D intends to cause offensive or harmful contact with P:
                 Intent: Usually need only to intend the harmful physical action that results in contact.
                 Harmful: Physical injury.
                 Offensive: What ordinary (reasonable) person would find offensive/offensive to personal
                    dignity (within reason). Contact must violate prevailing social norms of what is
                    acceptable touching, rather than merely individual standards.
            3. D’s action causes such contact:
                 Doctrine of Extended Personality: battery can be established by contact with anything
                    so connected with the body as to be customarily regarded as a part of the other's person
                    and therefore as partaking of its inviolability.
    Offensive Touching: offensiveness determined by jury (must go to trial if possible to find tort)
         o Damages awarded for mental disturbance (fright, revulsion, or humiliation)
         o Offensiveness factors in physical circumstances and the relationship of the parties
    Intent: intent can be gathered from actions immediately preceding the battery
         o D found with intent to violate the legally protected interests of P (shooting case) after striking P
                 Motion for summary judgment granted – D intended to cause harm to P at the time gun
                    fired whether or not firing was accidental.
                 To prove intent: circumstantial evidence can be used
    Sovereign Immunity: Government Immunity Act bars claims for intentional torts.
    Incapacity: Mental incompetence is not a defense – reasonable person standard still applies.

    Prima Facie Case: Actor D is liable to person P for assault if:
            1. D acts: does not include accidents w/o intent or other people using actor‟s body.
            2. D intends to cause in P the apprehension of an offensive or harmful contact;
            3. D’s action causes P to reasonably apprehend such contact.
    Reasonable Person Standard: reasonable person would apprehend harm
    Special Susceptibility: D has knowledge/awareness of a unique susceptibility of P
    Aiming Weapons: liable for assault when D intends action with weapon (threatening manner).
    Verbal Threats: usually do not produce apprehension of imminent contact – usually not liable.
                Verbal threats can usually be prevented from realization with proper precautions
                       Exceptions:
                                 o Common carriers have duty to protect from assault (liable if they threaten
                                 o Ordinary prudent person would fear imminent danger from threat.
                                 o D uses known unique susceptibility of P to cause fear.
                  Verbal Threats with Apparent Ability: it is sometimes sufficient [to establish
                    liability] that P believes D capable of immediately inflicting contact unless P flees or
      False imprisonment: detaining without explicit statutory permission, or respect for due process.

     Eggshell Plaintiff: D kicks P in class, [maybe] causes considerable harm, still liable for battery
     Horseplay: D kicks P, did not intend harm, liable regardless – unreasonable to claim that kick itself was
        not intentional.
     Substantially Certain Harm:
            o Rest. of Torts: when D is substantially certain harm will result from conduct, and does it still,
                law treats conduct as intended to bring about harm.
            o Risk of harm without substantial certainty is not enough.
            o Actions that are substantially certain to produce harm if they succeed, even if improbable or the
                likelihood of succeeding is in doubt by D, still produce liability to D.
     Transferred Intent:
            o Across Victims – Intent to assault A, but actually assaults B; liable to B for assault
            o Same Victim, Different Tort – Intend to assault A, actually shoot A; liable to A for battery
            o Different Tort, Different Victim – (In re: White) Intend to assault A, actually shoot B; liable to B
                for battery
            o Chattel to People – If a person intends to harm a thing (domesticated dog or car) and actually
                hurts a person, it may constitute battery. (Possible negligence claim if battery/assault fails.)
            o Proximate Cause Issues – Roommates goad underage P into drinking, P dies from alcohol
                poisoning. Supplying alcohol wasn‟t intended to cause death, and P’s actions were superseding
                cause (P might be comparatively negligent in negligence action). Not liable.

    Consent: P has burden of proving the absence of consent.
          o Express consent: written waivers
          o Implied consent: sports, crowded transport, relationships
          o D thinks P consented: if based on P‟s conduct, D reasonably concludes P consented, D is not
            liable. P‟s conduct itself is the only source for reasonable but mistaken inference.
          o Paternalism: D thinking P should have consented is not enough.
          o Strong belief of imminent peril to P: If D reasonably believed touching necessary to save P from
            imminent physical harm, maybe no liability.
          o Objective indicia of consent: man waits in line for vaccine, then sticks arm out – implied consent
          o Narrow consent: if consent is given to specific people, the consent cannot be transferred
          o Scope of Consent: if consent is given for specific contact, consented-to contact cannot transfer
          o Fraud/Coercion: D cannot benefit from consent if P‟s consent if secured with misrepresentation,
            fraud, or coercion.
                 Consent is not a defense when –
                         P lacks ability or judgment necessary to give meaningful consent; and
                         A reasonable person in D‟s position would perceive this lack of capacity.
      Self Defense: available to D who actually and reasonably believed in necessary to injure P to avoid
       imminent physical harm or confinement to D’s self or others.
           o Application:
                  Physical harm, inappropriate touching, or confinement – defamation, IIED don‟t qualify
                  If D precipitates confrontation, D can‟t invoke self-defense unless sufficiently disengaged
                     that D‟s involvement is no longer the main impetus for confrontation with P.
           o Reasonable Force: self defense justified if force used is proportionate to the threat
           o Provocation: insult coupled with physical aggression might be sufficient
           o Objective: reasonable person must agree D could perceive imminent harm and acted
           o Defensive Use of Others: D uses bystander P as human shield – liable for battery.
      Defense and Recapture of Property: possessor can’t booby-trap premise to only protect property
       (and not people).

Intentional Infliction of Emotional Distress: very rarely succeed
                1. Conduct is extreme and outrageous – beyond all bounds of decency.
                         Matter of Fact or Law (jurisdictional split)
                2. D intends to cause P emotional distress so severe that it could reasonably be expected to
                   adversely affect physical health.
                3. D’s conduct actually causes said severe emotional distress (SED).
    Statute of Limitations: statute of limitations for concurrent tort will usually control
           o IIED claims brought independently need independent facts.
    Outrageous conduct (liable): distributing naked photos of ex-wife, distributing names of jury, violate
       restraining order calling girl and friends over 100 times with threats of physical harm, policeman
       arguing with mother while girl raped by intruder.
    Merely Offensive conduct (not liable): priest sleeps with wife, racist comments, yelling
    Future Threats: P files motion for IIED after statute of limitations for battery passed, D liable for
       inducing emotional distress for threats of being killed in the future accompanying the battery.
    Bystander IIED: Family members (w/o bodily harm from SED); other bystanders with bodily harm
    Malicious Property Destruction: P owns pet horses, D sells them to slaughterhouse – liable.
    Recklessness: it is sufficient in some jurisdictions to be reckless with respect to a very obvious risk
    Special Susceptibility: If D has knowledge of P‟s special susceptibility to distress, it‟s enough for
       liability even if reasonable person in P‟s position wouldn‟t be distressed.
    Conflict w/ 1st amendment rights: as a matter of law, descriptions or depictions of public figures
       cannot be deemed outrageous.


      Compensatory: Economic; medical expenses, lost wages, therapy, repair bills
          o Non-economic losses: pain and suffering, loss of enjoyment, lost life expectancy, loss of spouse
      Punitive: usually only for reckless or intentional conduct
          o Respondeat Superior: only punitive if consciously indifferent or deliberately ignorant.
          o Rationale: Punishment, Notice and Deterrence, aids in deterring monetary incentives for
              intentional torts
                     Ratio to compensatory: less than 4:1 is acceptable, between 4:1 and 10:1 suspect, >10:1
                      dismissed or remanded
                   Level of reprehensibility is considered.
     Liability insurance: doesn’t cover intentional torts or willful and wanton behavior.
          o Duty to Defend: duty to provide lawyers and defense for negligence actions
          o Duty to Indemnify: duty to reimburse policy-holders
Begin with: To establish a claim of __________ (negligence, battery, etc.), P must show _____________
(requirements). D will argue ____________ (requirements missing, defenses).

(use headings)

      name parties to be compared
      restate broad question, answer with broad thesis (P would likely make claim of X, Y, and Z against D1)
      state actions between named parties
           o explain clear and obviously satisfied elements
      discuss issue elements; elements not obviously satisfied, if at all
           o identify the cause for uncertainty
                    outline possible resolutions for uncertainty
                          • mention policy rationales
           o come to conclusion on issue elements
      come to summary conclusion on claim

Issues: Forks in Law or Forks in Fact

   •   take each permutation of parties in turn

   •   take each cause of action in turn

   •   check each element of each cause of action against the facts

If...                          Then...
My problem question has        Point out the missing facts and set out the consequences that would
incomplete facts               follow according to different factual configurations
My problem question has            • Set out at the underlying rationale of the rule to work out whether
novel facts                            the rule extends to the facts in question
                                   • Reason by analogy
The parties in my problem      Set out the consequences that would follow according to which version of
question assert opposing       the facts the court accepts
versions of the facts
The rule I must apply             •     Set out at the underlying rationale of the rule to work out whether
contains ambiguous words                the rule extends to the facts in question
                                  •     Use maxims of interpretation
                                  •     Look at the words in context of the rest of the statute
The courts are divided on         •     Contrast the outcomes according to which version of the rule the
which version of the rule to            court applies
apply                             •     If appropriate, try to predict the rule the court will apply by
                                        considering the current composition of the Bench, trends,
                                      academic critique, extra-judicial writings, and so on


Negligence: A prima facie negligence claim consists of the breach of a duty owed to the plaintiff to take care to
avoid causing the plaintiff‟s injury(s).
1. Was there an injury to P?
        - Physical Harm, Loss of Chance, Property Damage, Emotional Distress, Pure Economic Loss
2. Did D owe a P a duty to avoid said injury?
        - Ordinary Duty, Affirmative Duty, Premises Liability
        - Negligence Per Se?
                 - Still need cause. (skip breach)
        - Strict Liability? (Animal Bites, Ultra-Hazardous)
                 - Still need cause. (skip breach)
3. Did D breach that specific duty?
        - What was the foreseeable likelihood of causing harm?
        - Was the action customary?
        - Res Ipsa Loquitur?  Persuasive; Still need cause.
4. Was there actual cause?
        - Were there multiple actors/causes?
5. Was there proximate cause?
        - Foreseeable
        - Was there an intervening cause?
6. Does D have a defense?
        - Was P negligent?
        - Did P act out of necessity?
        - Did P consent?
        - Did P assume the risk?
        - Is D immune from liability?
7. What are the damages?

Trespass to Land: A prima facie trespass to land claim consists of an intentional invasion of property that
interferes with the possessor‟s use and enjoyment or otherwise right to exclude.
1. Is P the lawful possessor?
2. Did D invade P‟s land?
3. Did D intend the invasion?
         - Was invasion accidental?
4. Does D have a defense?
         - Necessity?
         - Consent?
5. What are the damages?

Nuisance: A prima facie nuisance claim consists of a continuous disturbance beyond reasonable endurance to a
possessor of land, whose right to use and enjoyment is being harmed.
1. Is P the lawful possessor?
2. Is there a harm or disturbance?
         - Beyond reasonable endurance, 5-Factor Test
3. Is the act causing the harm intentional and voluntary?
4. Is the disturbance continuous?
5. How does P‟s benefit compare to D‟s hardship?
         - Coase Theorem
Products Liability: A prima facie products liability claim can be found when the plaintiff has an injury that
was actually and proximately caused by a product, defective at the time of sale, sold by the seller (defendant).
1. Is there an injury?
         - What type of injury?
2. Does D sell a product?
         - Does it count as a product?
3. Is D a commercial seller of such products?
         - Manufacturer, distributer, retailer.
4. Was the product defective at the time of sale?
         - What type of defect?
5. Was the product the actual and proximate cause of the injury?
6. Does D have a defense?
         - Did P assume the risk?
         - Is P also negligent?
7. What are the damages?

Battery: The prima facie tort of battery occurs when a defendant acts with the intent to cause harmful or
offensive contact, and the defendant‟s actions actually and proximately cause such contact.
1. Did D act?
2. Did D intend offensive or harmful contact?
        - Was D substantially certain of harm?
        - Did D intend assault or battery to someone/something else?
3. Did D‟s actions cause such contact?
        - Were they the actual cause of the injury?
        - Were they the proximate cause of the injury?
4. Does D have a defense?
        - Sovereign immunity, Consent, Self-Defense
5. What are the damages?

Assault: The prima facie tort of assault occurs when a defendant acts with the intent to cause in a plaintiff the
apprehension of imminent harmful or offensive contact, and the defendant‟s actions cause such apprehension.
1. Did D act?
2. Did D intend to cause in P the apprehension of imminent offensive or harmful contact?
       - Was D substantially certain of harm?
       - Did D intend assault or battery to someone/something else?
3. Did D‟s actions cause such apprehension?
       - Were they the actual cause of the harm?
       - Were they the proximate cause of the harm?
4. Does D have a defense?
       - Sovereign immunity, Consent, Self-Defense
5. What are the damages?

IIED: The prima facie tort of IIED occurs when a plaintiff experiences severe distress when a defendant
employs extreme and outrageous conduct with the intention of inducing said distress in the plaintiff.
1. Was D‟s conduct extreme and outrageous?
         - Merely offensive?
2.   Did D intend to cause severe distress in P?
         - Did D recklessly disregard the possibility?
         - Was D aware of a special susceptibility of P?
3.   Did D‟s conduct actually cause distress?
4.   Does D have a defense?  Challenge elements. (No incapacity)
5.   What are the damages?

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