Intentional Torts:
Injury must come about in the
Battery
1. A acts
2. Intending to cause harm
3. Intended contact is harmful Strict liability:
or offensive
 Offensive if unpermitted
4. A’s act causes P to suffer
offensive harm or contact
Assault
1. A acts
2. Intending to cause P
apprehension of
harmful/offensive contact
1. Not always fear, more
expectant. No $ if no fear
though
3. A’s act reasonably causes P Nuisance
to apprehend such
False Imprisonment
1. A acts
2. Intending to confine P
3. A’s act caused P to be
confined
4. P is aware of confinement
(most states)
1. Some jurisdictions- P
didn’t consent to
confinement and A wasn’t
legally authorized to
confine P
i. Type 1
1. ∆ confines P on claim of
authority (police/detention by
store guard)
ii. Type 2
1. ∆ confines without claim of
authority (locking someone in
your closet)
Whiticker ship case. Not bounded
if there is a reasonable means of Abnormally Dangerous
escape
Intentional infliction of
Emotional Distress
1. Extreme/outrageous
conduct
 May become outrageous if
continuous or children,
elder, pregers
 Outrageous if common
carrier and guest/passenger
2. Intentionally or recklessly b.
causing (or substantially
certain)
3. Severe emotional distress
Trespass
Trespass to land & nuisance
Elements
a. Actor causes physical
invasion of prop lawfully
possessed by another AND
a. Physical counts
b. Intended to contact property
invaded
-A didn’t have to know or
have reason to know land
was possessed by another
1. Requires P to have possessory
interest in affected property
2. Frequently involves requests
for injunctive relief
3. Doesn’t require proof of harm
to property
4. Doesn’t require proof of ∆’s
failure to act reasonably
Unlike trespass, nuisance:
1. Intent to contact space isn’t
required
2. Usually a continuing
interference (not one off)
3. Requires unreasonable
interference with P’s use of
property
a. Inquiry concerns nature
of interference, not ∆’s
conduct
4. Liability turns in part on ∆’s
interest in continuing the
activity.
Activities
1. Creates foreseeable and highly
significant risk of physical
harm even when reasonable
care is exercised by all actors
and
2. Is not one of common usage
a. P must be the right kind of
victim (bystander not
participant)
right manner (foreseeable to an
extent)
Products Liability
1. Injury
2. Product sold by ∆
3. ∆= a commercial seller of
the product
4. product was defective at
time of sale
5. causation
a. actual and proximate
Intent:
Transferred Intent
 Tort to tort and victim to victim
 Close relative applies in IIED
(directly or transfer)
Defenses:
Consent: children, mental
impairment, coercing or force,
fraud or mistake are not consent
Expressed: go and do it
Implied: custom or usage
(football). Defendants POV
Private necesseity: you can enter
someones property, but you will
have to pay any damages
Public: act to prevent public
disaster
Negligence
a. Injury
a. General Duty,
unqualified
i. Property damage,
bodily harm
b. Limited duty, qualified
i. Economic loss,
emotional distress
b. Duty (if no duty, then no
case)
a. Duty to foreseeable victims
i. Unqualified- take
ordinary care to avoid
physical harm to
forseable victim
ii. Qualified- no duty
unless, to make
reasonable effort to
protect or rescue, to
provide reasonable
reasonably safe
 premises, to take
reasonable care to
avoid causing
nonphysical harm
c. Breach of duty
a. Must be a careless
mistake or action
d. Causation
a. Actual cause
i. But for the actions of
D, the plaintiffs
injury would not
have resulted
b. Proximate cause,
i. AND injury is one of the
type you would
expect for this breach
ii. Reasonably could have
foreseen this
e. Damages
Duty
To who: foreseeable victims
Pulsgaraff: unforeseeable victim.
Duty in or around vicinity you act
Minority: duty to world at large
Pulsgaroff= invitee
Take the amount of care as a
reasonably prudent person would Half of states abolish
Superior skill/expertise: what
would a similar expert do?
Disability- same above
Children: like age, intel, exper. 5
is generally the cut off (unless
doing adult activity)
Professional: ordinary for the
profession
Informed consent: did they inform dangerous than violation OR it is
of risks as ordinary member?
No consent- battery?
Owners/occpy/land-
Activity on land: something fell
on you
Static condition: Ditch
 Undiscovered trespasser:
no duty for activity, no
duty for static
 Discovered trespasser:
reasonable care/prudent
standard
 Static conditions:
conditions that are
artificial, highly
dangerous, concealed
conditions that you are
aware of
 Manmade deathtraps
Licensee: social guest
 Reasonable care
standard
 Static: Any Concealed
condition known to
the owner or occupier
 Invitee: anyone who
comes that are open to the
public
 Police and firefights are
treated as licensees
 Static conditions:
concealed you either
knew about or could
have known about by
reasonable inspection
(duty to inspect)
 Reasonable care,
reasonable inspection
Children: reasonably prudent,
attractive nuisance
invitee/licensee, and some take
out trespassers. They just use
reasonable prudence
Using statutes:
Negligence Per Se- Class of
person and Class of risk
Except: compliance is more
impossible
Affirmative duty to act: you do
not have to act, but if you do, it
must be reasonable, and you can
not stop
Duty to act: close family,
innkeeper, invitee/or, third person
injuring someone in ability and
authority to control third party
NIED: If the defendant exposes
you to physical risks by the
defendants negligence and you
later suffer physical
manifestations from the distress,
you do have the opportunity, only
in zone of danger or have a close
relationship with victim
Breach of Duty
How: evidence of custom, always
admissible but never conclusive
 Res Ipsa Loquitor (don’t know
how, but get to jury): The
event which occurred, does not
normally occur in the absence
of negligence
 Any negligence would have
been attributable to the
defendant
 Defendant had exclusive
control of the instrumentality
Causation
Actual Cause
- But for test
- Multiple d’s-
- comingled cause-
something negligent that
releases force in to the
world and combine harm
to the plaintiff (two cards,
two fires)
- Shifting burden: D’s
(unknown cause) have
burden to show they did
not do it or the other D
did it (Summers, qual)
Proximate Cause
- Only liable for those
harms that are within the
risks of your own activity:
Harm v. risk
- Direct cause fact pattern:
first ripple of rock being
plunked in to water
(usually the plaintiff will
prevail)
- Indirect (or intervening)
cause fact pattern:
defendant acts, then
something or someone
one else acts too, and then
 the plaintiff is injured and
only after the second act
does the plaintiff get hurt
- This is resolved by: was
the intervening event
forseable?
o Was the outcome
forseable?
- Forseable-forseable=
plaintiff wins
- Unforseable-unforseable:
plaintiff will lose
- Subsequent medical
malpractice
o Always
forseable:liable
toward original neg.
actor
- Negligent rescue: always
foreseeable. Good
submeritan does further
damage. Original
negligent actor is
responsible
- Reaction forces: you
shoot a gun in the air,
causing crowd to leave Comparative negligence
and something gets
knocked down on top of
someone. Yes, reaction
forces are foreseeable
- Subsequent diseases and
accidents: subsequent
diseases and accidents are
foreseeable.
Damages
o Pat and future medical
damages
o Lost income
o Pain and suffering
o Egg shell skull plaintiff
principle: the defendant
is liable for all resulting
injury even if some of it
is unforeseeable (take
victim)
Contributory
Negligence
 Plaintiffs failure to use the
relevant degree of care for
his or her own safety (bar to transforms the situation as to
recovery) introduce a “new power of
 Ameliorating doctrines: the mischief”
doctrine of last clear a) intervening negligence
chance: usually doesn’t count as a
o A plaintiff can superseding cause
recover despite (1) P in car
contributory accident, med.
negligence if the mal. In treatment
defendant had the last = no superseding
clear chance to avoid cause
the accident but failed Not in Restatement
to do so
 Expressed assumption of o Sindel: Market share
the risk will almost always liability: if through no
bar recovery as stated or fault of her own, the P
written can’t ID the manufacturer
 Implied willingness to take who injured her & sues
your chances: plaintiff must manufacturers who
have knowledge of the risk together constituted a
and the risk has to be “substantial” share of the
voluntarily encountered relevant market, each ∆ is
 Has to be something not subject to liability unless
overly burndensome on they can disprove their
funds (costs to do so can not drug caused P’s injury.
be more, Zapata) Anyone that can’t
disprove, P can recover %
 Comparative negligence of damages based on ∆’s
will reduce recovery in market share
cases where contributory
negligence will bar it
 Pure comparative
negligence:
o Partial/modified
comparative
negligence: reduce it
until the threshold is
at 49 or 50 percent
and thereafter they are
bared
Superseding Cause
1. When causal chain cuts off
due to 3rd party acts
a) When does 3rd party’s
intervening, wrongful
injuring of P spare ∆ from
liability, even though ∆’s
carelessness was also an
actual cause of P’s injury?
2.∆ ceases to be responsible
when 3d party act so