Torts Outline (Quick)

Winter Semester 1997

I. INTENTIONAL HARM
The six basic intentional torts are:
Battery, Assault, False Imprisonment, Intentional Infliction of Emotional Distress,
Trespass of Lands, Trespass of Chattels, Conversion
Learned Hand B<PL P is high L=actual loss B=precaution (very low w/ intent)
Intentional Torts: a) Act, and act must be volitional, b) Intent ,c) Consequence must
take place, d)Transferred Intent:
Types of Intentional Torts:
1) ASSAULT 1)Causation 2)Act 3) Intent4) Lack of Consent, 5) Apprehension;
2) BATTERY 1)Act, 2)Intent, 3)Harmful or Offensive Contact, 4) Causation .
3) DEFENSES: 1) Self-defense, 2) defense of others, 3) defense of property,
4)retaking of land, 5) recapture of chattels, 6) necessity, 7) discipline, 8) detention
for investigation (i.e. shoplifting) and 9) legal authority.
DAMAGES: 1) actual damages, 2) nominal damages 3) punitive damages.
i) Eggshell Skull Theory
4) FALSE IMPRISONMENT 1)Act, 2)Confinement, 3)Causation, 4)Intent, 5)
Awareness or Harm:
FALSE ARREST:
Shopkeeper’s Privilege: (Not an arrest)
Citizen’s Arrest:
DAMAGESfor lost time, inconvenience, physical humiliation.
4) INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS:
1) Damages, 2) Intent, 3) Causation, 4) Extreme Conduct (Act) outrageous words OK
OUTRAGEOUS CONDUCT= exceeds socially acceptable behavior
PHYSICAL HARM (not necessary here) will help prove i.e. ulcer, lost weight, high BP
1) TRESPASS TO LAND1) Physical Invasion, 2) Possession, 3) Intent , and 4) Act ;
2) TRESPASS TO CHATTELS 1) Act, 2) Intent, 3) Damages, 4) Possession
DEFENSES:
1) Consent:
a) Express
b) Implied-in-Fact: Volenti: non fit injuria
c) Implied-in-Law: in emergency situations::
a) Consent can be revoked
PRIVILEGES: This is an affirmative defense against prima facie cases.
1) Self Defense:
2) Defense of Others:
3) Shopkeeper’s Privilege:
4) Citizen’s Arrest:
5) Defense Property and Chattels:
a) Private Necessity:
b) Public Necessity:
6) DAMAGES AVAILABLE
a) Nominal Damages: Symbolic damages (i.e. $0.06)

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 b) General Damages: Covers non-economic (i.e. embarrassment, pain & suffering)
c) Special Damages: Covers economic losses (i.e. medical bills and loss of pay)
d) Punitive damages: designed to punish the D usually available for emotional
distress.
TRESPASS TO LAND
a) Actual damages caused to the land
b) Nominal damages.
THE NEGLIGENCE PRINCIPLE: conduct, which falls below the standard,
established by law for the protection of others against unreasonable risk of harm.
a) Negligence: 1) Duty, 2) Damages, 3) Breach of duty, 4) Causation, 5) (Prove)
Damages Mnemonic: DuD CaB
The concept of negligence is fairness to each party.
STANDARD: (Learned Hand formula)
Formula: B < LP (negligence)
B> LP (no negligence)
1) STANDARD OF CARE (Could the event have been foreseeable?)
P must prove that D’s intention was unlawful or that w was at fault or breached a duty of
care (Basic premise of Negligence law)
Duty of care
a) Reasonable Person: Everyone owes a duty to act as a reasonable person would
under same or similar circumstances (BRIGHT LINE RULE)
i) Special Duties:.
2) THE REASONABLE PERSON Standard applies to all persons
3) ROLES OF JUDGE AND JURY IN TORT CASES
a) Judge: Decides matters of law
b) Jury: Decides issues of facts
4) THE ROLE OF CUSTOMS Proof of custom (reflects judgment experience and
conduct of many in the same industry), or accepted practice, when accompanied by
evidence that the Defendant conformed to it, may establish duty of care.
5) THE ROLE OF STATUTES: Statutory purpose is critical to determine if
negligence applies. The class of individuals and the kind of harm is the purpose of
the statute.
a) NEGLIGENCE PER SE: A violation of a statute is negligence itself
6) MALPRACTICE is the failure of one rendering professional services (i.e. Dr.
lawyer, accountants) to exercise the level of skill commonly possessed by minimally
qualified members of the profession in good standing.
7) FORESEEABLE PLAINTIFF duty of care only extended to “foreseeable plaintiffs
– that is those within the zone of danger.
8) AFFIRMATIVE ACTIONS: No rule that an individual must act
EXCEPTIONS:
a) D’s act created the peril
b) A “special relationship” mandates affirmative
c) D has undertaken to act.
9) PROOF OF NEGLIGENCE
a) Duty (Law)
b) Breach of Duty (Fact

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 c) Causation (Fact)
d) Damages (Fact) jury’s duty:
1) THREE MEANS OF PROVING NEGLIGENCE
a) Direct Evidence, b) Circumstantial Evidence, c) Res ipsa loquitur
a) Mode of Operation (Vicarious (Imputed) Liability on a business):
Like a supermarket or a self serve.
10) THE SPECIAL CASE OF MEDICAL MALPRACTICE: This is really a
question of customs and elevated professional standards v. the Patient.
a) Modern Rule: Reasonable Patient: The Doctor must disclose material risks,
he also must disclose probabilities and threshold risks
b) Expert Witnesses:
i) Limitations on experts: Same school /licensed/ familiar w/ methods

IV. THE DUTY REQUIREMENT: PHYSICAL INJURIES Not to expose another to

harm.
A) OBLIGATIONS TO OTHERS: At common law an individual owes no duty
toward another person unless a special relationship exists. However, a duty
will be imposed even toward a stranger when an individual begins aiding the
stranger, or the individual actually put the stranger in peril.
MISFEASANCE: the improper or wrongful performance of some lawful act
v.
NONFEASANCE: the failure to perform a duty which one is obliged to perform.
B) OBLIGATIONS TO CONTROL THE CONDUCT OF OTHERS
Duty to 1) Warn , 2) Restrain, 3) Call Police
Vicarious Liability:
NEGLIGENCT ENTRUSTMENT:
SOCIAL HOSTS:
DRAM SHOP ACT:
C) LANDOWNERS AND OCCUPIERS).
TRESPASSER: All entrants onto land are trespassers until the possessor has
given permission to be on the land an interest in the visit. Generally no duty of
care is owed a trespasser
LICENSEE: (Also Social Guests in most states) All persons who enter property
with permission. Possessor owes a licensee the duty to make safe dangers of
which the possessor is aware.
INVITEE: (Business appointments) All persons who enter property with
permission and the possessor has an interest in the visit. Possessor owes the
invitee a duty to exercise reasonable care to protect them against both known
dangers and those that would be revealed by inspection.
D) INTRAFAMILY DUTIES (Problems w/ insurance fraud and estranged
spouses)
1) Spousal Immunity:
2) Parent/child:
E) GOVERNMENTAL ENTITIESDoctrine of sovereign immunity has in
recent times become the exception instead of the rule.
1) MUNICIPAL AND STATE LIABILITY

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 2) FEDERAL TORT CLAIMS
THE DUTY REQUIREMENT: NON-PHYSICAL INJURIES (EMOTIONAL
HARM)
1) P must suffer physical injury form distress
2) Special situation where physical injury not required are:
a) erroneous report of death of relative or
b) mishandling of relatives
PHYSICAL IMPACT RULE: was the rule of law in the past, but when, as in this
case a child is hurt or killed and the parent witnesses it, no physical damage need
be shown. Instead 1) the plaintiff must be located near the scene of the accident 2)
the shock is from 1st hand knowledge of the accident and not from the learning
about the accident from other sources. 3) the P and victim were closely related
LOSS OF CONSORTIUM
PROPERTY:
WRONGFUL BIRTH AND WRONGFUL LIFE
1) Wrongful Death: statutes compensate a defined group of people (usually the
accident victim’s family) for the loss they sustained as a result of a tortiously
caused death. Recovery is allowed for lost economic support, companionship,
consortium.
2) Wrongful Life: is a claim for extending the life of a person, and the cost of
maintaining that person life up and above the normal costs are sued for. (Go
for extraordinary expenses, emotional distress)
OFFSET: Cost of raising a child.
A) ECONOMIC HARM a defendant who has breached its duty of care to avoid
the risk of economic injury to particularly foreseeable plaintiffs may be held
liable for actual economic losses that are proximately caused by its breach of
duty.Actual knowledge of eventual economic loss is not necessary.
VI. CAUSATION
A) CAUSE IN FACT
BUT FOR TEST or
SUBSTANTIAL CAUSE (2 or more D’s see Summer v. Tice)
VII. AN INTRODUCTION TO JOINT AND SEVERAL LIABILITY liability is
shared collectively and also individually among a group of persons
Three situations this is used in are:
a) The tortfeasors act “in concert” (i.e. one grabs the P and the other his
wallet)
b) The tortfeasors fail to perform a common duty to the P
c) The negligence of several tortfeasors acting independently combines to
product an indivisible injury to the P
MULTIPLE DEFENDANTS (Substantial Cause or Factor)
MARKET SHARE LIABILITY: can be seen as approaching the imposition of the
status of insurer of defective product upon the manufacturer.
B) PROXIMATE CAUSE
DIRECT CAUSE RULE: Extends the liability beyond Learned Hand
REASONABLE FORESEEABILITY RULE: Is the Learned Hand Concept

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 UNEXPECTED HARM
EGG SHELL DOCTRINE:
UNEXPECTED MANNER.
EXCEPTIONS TO RULE OF LAW: The original actor is not absolved if he had
control over the activities of the intervenor.
UNEXPECTED VICTIM (No duty of care)
VII. DEFENSES TO NEGLIGENCE CLAIMS
A) THE PLAINTIFF’S FAULT
CONTIBUTORY NEGLIGENCE:
LAST CLEAR CHANCE:
COMPARATIVE NEGLIGENCE
PURE DOCTRINE:
MODIFIED:
DERRIVATIVE ACTIONS
1) Loss of Consortium
2) Wrongful Death
3) Bystander emotional distress
4) Parent – child
SET-OFFS
a) Insolvency of one D.
b) Contribution and Indemnity
c) Settlement
B) ASSUMPTION OF RISK:
1) EXPRESS ASSUMPTION OF RISK: VOLENTI NON FIT INJURIA
2) IMPLIED ASSUMTION OF RISK (No Duty Rule)
IX. STRICT LIABILITY
1) Fault is not an element of the action, so D’s carefulness is irrelevant
2) Causation element is analyzed the same as negligence, applying the
same rules of actual and proximate cause.
3) The four elements used to determine if an activity is “highly
dangerous” are:
i) High risk of serious injury
i) No way to perform the activity safely
ii) Is activity not commonly engaged in in the particular
iii) Does danger outweigh the utility of the act to the community
(balancing act)Rest.2d §§519-520
4) Natural and Artificial Conditions of Land: A person who brings something onto
his land which is potentially harmful if it escapes is strictly liable for all the
natural consequences of such escape.
ULTRAHAZARDOUS RULE: 1) great probability of harm 2) potentially serious
level of harm 3) the activity is not a matter of common usage 4) harm can’t be
prevented by utmost care 5) the activity is inappropriate for the location 6) the
social value of the activity is not sufficient to offset the risks.
DEFENSES: Assume of Risk, Comparative Negl.
HANDGUNS: Not SL (by legislature in NJ)

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 X. LIABILITY FOR DEFECTIVE PRODUCTS The 4 general theories
for product liability are: 1) Negligence, 2) Strict Liability, 3) Implied
Warranties (merchantability and fitness for a particular purpose), and 4)
Misrepresentation and express warranty
NEGLIGENCE CLAIMS
1) The five ways a manufacturer or a supplier can be negligence are:
a) Manufacturing flaw: ( a condition different than that intended)
b) Failure to reasonably inspect:
c) Negligent design (Hardest to prove – balancing test used utility v. harm)
d) Failure to warn
e) Failure to take care to obtain quality components
2) Manufacturing negligence can’t be imputed on Wholesalers and retailers
3) Defenses Contributory negligence and assumption of the risk.
STRICT LIABILITY CLAIMS
LH B<PL Don’t care what B is. P is high and L=actual costs of loss
Should the company invest in safety by a) Self insuring, 2) reducing activity, 3) get
out of business.
1) The requirements for proving SL in product liability claims are:
a) Defect: defective condition unreasonably dangerous to the user
b) Control:
c) Change: product did not undergo any unanticipated changes
d) Business: Seller must by in the business of selling the product (not a casual
user)
e) Causation: damages must result from the defect
f) No privity required: duty extends to anyone foreseeably endangered by the
product
2) Strict liability can by viewed as being different from negligence in that looks to:
a) Unreasonably dangerous defects and
b) Fault must be proved in negligence, where in SL need only prove the sale of
an unreasonably dangerous defective product
c) In negligence Wholesaler and retailer are only liable if they fail to inspect, in
SL they are liable if product had an unreasonably dangerous defect left in their
control.
d) Failure to warn: Manufacturer can’t really be SL for failure to adequately
warn; reasonableness is built in to the notion of an adequate warning
(however, wholesaler’s and retailer’s can be SL for reselling a product w/o
adequate warnings.
3) 3 basic defects covered by a SL claim are:
a) Manufacturing design
b) Design defects
c) Failure to adequately warn (as to dangers a reasonable user of the product
would have no reason to expect)
4) Possible Defenses to SL are:
a) Assumption of the risk
b) Abnormal Misuse:
c) Failure to follow instructions:

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 WARRANTY DEVELOPMENT: Merchantability or Fit for Specific Purpose are
expectancy of K.
THEORIES OF RECOVERY
a) Tort & Warranty: If D’s conduct is reckless, the D can be held liable
for punitive & compensatory damages
b) P must prove (negligence action) that D failed to exercise reasonable
care in its production or marketing of the product or it’s representation
concerning the product.
c) Breach of Warranty may impose contractual restriction re: privity of
K, notice of breach, statute of limitations, etc.
d) REST. 2d TORTS §402A: (Claims of strict liability) IMPLIED
STRICT TORT LIABILITY: A SELLER ENGAGED IN THE
BUSINESS OF SELLING A PRODUCT IS STRICTLY LIABLE
FOR PHYSICAL HARM TO PERSON OR PROPERTY CAUSED
BY HIS SALE OF THE PRODUCT IN AN UNREASONABLY
DANGEROUS 7 DEFECTIVE CONDITION. (The article must be
dangerous to an extent beyond that which would be contemplated by
the ordinary consumer who purchases it, with the ordinary knowledge
common to the community as to it’s characteristics.
REST.2d TORTS §402B: EXPRESS STRICT LIABILITY: A
SELLER ENGAGED IN THE BUSINESS OF SELLING
APRODUCT IS STRICTLY LIABLE FOR PERSONAL HARM
CAUSED BY JUSTIFIABLE RELIANCE ON A PUBLIC
MISREPRESENTATION MADE BY THE SELLER CONCERNING
THE CHARACTER OR QUALITY OF THE PRODUCT.
CONSUMER EXPECTATION TEST: P must prove that the product didn’t perform as
safely as an ordinary consumer would have expected.
NEGLIGENCE: When the product is produced, judge the actions of the company
STRICT LIABILITY: At the time of trial, judge the product, binds everyone in the
distribution channel if product found no good.
INSTRUCTIONS AND WARNINGS (Matter for the Fact finder)Issues are:
a) Is a warning needed at all
b) If needed how adequate does it need to be to make the product safer
c) Would a warning make the product safer
ADEQUACY: This is often a guess as to whether a better warning would have avoided
the harm
WARNING OF INTRINSIC RISK: If an adequate warning renders the product
unmarketable, then no warning will render the product unsafe.
BEYOND PRODUCTS: Must prove the services were defective and caused the injury.
DEFENSES
1) PLAINTIFF’S FAULT
PREEMPTION:

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 LIABILITY

K Law (UCC) Tort Law (402A) Vacuum Cleaner

Warranty No pure economic harm Stops working

Not a clear case of physical harm Starts smoking

Limits property Property damage claims Eats carpet

damages

Merchantability Damage to vacuum v. blows up

To people
IF IT HURTS YOU OR OTHER PROPERTY- TORT KICKS IN

X. TRESSPASS AND NUISANCE

A) TRESSPASS This is distinguished from nuisance, because it is a physical
invasion that interferes with the landholder’s exclusive possession (i.e. a
building overhangs over P’s property
B) NUISANCE
PUBLIC NUISANCE:
PRIVATE NUISANCE: