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Affirmative Defense

A manner of defending oneself against a claim not by denying the truth of the charge but by the introduction of some evidence challenging the plaintiff's right to bring the claim

Assault (Rule) (Intentional Torts)

An intentional act which causes plaintiff to experience a reasonable apprehension of an imminent, harmful or offensive contact

Assault Intentional Act Element 1 (Intentional Torts)

Defendant must act with intent to cause (1) an immediate harmful or offensive contact or (2) the immediate apprehension of such a contact

Assault Reasonable Apprehension Element 2 (Intentional Torts)

The victim must perceive that harmful or offensive contact is about to happen to him

Assault - Imminent Harmful or Offensive Contact Element 3 (Intentional Torts)

This element is satisfied if the contact threatened would inflict pain or impairment of any body function (harmful) or if a reasonable person would regard it as offensive

Authority Arrest Police Officer Rule (Intentional Torts Defenses)

Where defendant is a police officer acting pursuant to a duly issued warrant, valid on its face, she is not liable in tort for the fact of arrest

Authority Arrest Private Citizen Rule (Intentional Torts Defenses)

May assert the defense for arrest of a person who has in fact committed a felony

Authority Arrest Shopkeepers Privilege Rule (Intentional Torts Defenses)

A shopkeeper can detain a suspected shoplifter on store property for a reasonable period of time, if the shopkeeper believes that the person detained committed, or attempted to commit, theft of store property

Authority - Discipline (Intentional Torts Defenses)

If a person holds a certain profession or position of status, he may be entitled to use discipline against others

Avoidable Consequences Doctrine/Mitigation (Torts Damages)

One who is injured must act reasonably in order to limit or mitigate losses or injury

Avoidable Consequences Doctrine/Mitigation (Torts Damages)

Injured victims have a responsibility to act reasonably to limit or mitigate losses incurred. If a plaintiff fails to act reasonably to mitigate injuries, the defendant will not be held liable for incremental losses that otherwise could have been avoided

Avoidable Consequences (Negligence Defenses)

Denies recovery for any damages that could have been avoided by the reasonable conduct of the plaintiff

Battery (Rule) (Intentional Torts)

An intentional act which causes plaintiff an unconsented harmful or offensive contact to himself or something closely associated with him

Battery Intentional Act Element 1 (Intentional Torts)

Defendant must act with intent either (1) to cause an immediate harmful or offensive contact, or (2) to cause immediate apprehension of such a contact

Battery Harmful or Offensive Contact Element 2 (Intentional Torts)

This element is satisfied if the contact would inflict pain or impairment of any body function (harmful), or if a reasonable person would regard it as offensive

Battery Close Contact Element 3 (Intentional Torts)

It is sufficient for a battery if defendant causes a contact with something close to plaintiff, as where defendant snatches a hat from plaintiffs hand, or pounds on a car in which plaintiff is sitting

Battery Plaintiff Not Aware (Misc) (Intentional Torts)

Unlike assault, plaintiff need not be aware of the contact Example: Dick spit on Prudence while Prudence was asleep. Several weeks later, Prudence learned of Dicks act. Dick is liable for battery
According to the collateral source rule, a defendants liability is not affected by the plaintiffs ability to recover damages from another, collateral source. The best example of this is a plaintiff who is injured in an automobile accident and sues to recover damages for property loss, personal injury, and other losses, such as lost wages

Collateral Source Rule (Damage Recovery) Part 1

Collateral Source Rule (Damage Recovery) Part 2

The fact that plaintiff can recover some or all of these damages or losses from plaintiffs or defendants insurance carrier, does not affect plaintiffs recovery against the defendant. In fact, this collateral source recovery will not be disclosed to the jury Compensatory damages are damages that are awarded to compensate or indemnify a person, or to provide restitution for harm suffered Compensatory damages are awarded for both pecuniary and non-pecuniary losses

Compensatory Damages (Tort Damages)

Designed to return the plaintiff to their pre-injury condition

Compensatory Damages (Tort Damages)

The award should make the plaintiff whole, sufficient to put the plaintiff back in the position he or she was before Defendant's negligent act

Compensatory Damages NonPecuniary Damages (Tort Damages)

Non-pecuniary losses include pain and suffering, and losses for mental distress

Compensatory Damages Pecuniary Damages (Tort Damages)

Pecuniary damages for property damages are the diminished market value of damaged property, replacement value, or rental value. For personal injury, pecuniary losses are medical expenses, lost wages, diminished earning capacity, and any other economic expenses that were incurred due to the injury

Consent Rule (Defenses to Intentional Tort)

If the victim gives permission, what would otherwise be tortious is instead privileged

Consent - Implied Consent (Defenses to Intentional Tort)

Consent is implied under circumstances where a reasonable person would interpret plaintiffs conduct as evidencing permission to act

Consent - Express Consent (Defenses to Intentional Tort)

Express consent exists where plaintiff affirmatively communicates permission for defendant to act

Consent Consent by Law (Defenses to Intentional Tort)

Consent may be found to exist as a matter of law where plaintiff is unable to consent, and (a) emergency action is necessary to prevent his death or serious injury, (b) a reasonable person would be expected to consent under the circumstances, and (c) no reason exists to believe that plaintiff would not consent 1. 2. 3. 4. 5. Incapacity Action Beyond Scope of Consent Fraud Duress Illegality

Consent Exceptions (Defenses to Intentional Tort)

Consent Incapcity Exceptions (Defenses to Intentional Tort)

Both express and implied manifestations can be held invalid. An individual can be held to lack capacity to consent. A child, depending on her age, may consent only to less significant matters. An individual without sufficient mental capacity due to insanity or retardation may not legally consent. Incapacity can also be the result of drug ingestion (including alcohol). Consent is also invalidated if the action goes beyond the consent manifested

Consent Action Beyond Scope of Consent Exceptions (Defenses to Intentional Tort)

A medical procedure without the patient's consent can constitute a battery The failure to inform the patient of risks when procuring consent is now, however, usually treated under negligence

Consent Fraud Exceptions (Defenses to Intentional Tort)

Consent is invalid if it is induced by fraud that misrepresents an essential aspect of the interaction

Consent Duress Exceptions (Defenses to Intentional Tort)

Consent procured under physical threat is invalid. However, as a general rule, economic pressure, while coercive, does not negate consent

Consent Illegality Exceptions (Defenses to Intentional Tort)

The traditional majority rule holds that a person cannot consent to a criminal act; the consent is always invalid. Taking the minority position, the Restatement holds that a person can consent to a criminal act for purposes of tort liability. The consent is still valid except where the criminal law is specifically designed to protect members of the victim's class


The right of a person or party who has compensated a victim for his injury to seek reimbursement from others who are equally responsible for the injury in proportional amounts

Conversion Rule (Intentional Torts)

Conversion is an intentional act that causes the destruction of or lengthy interference with use of plaintiffs chattel

Conversion Intentional Act Element 1 (Intentional Torts)

As with trespass to chattels, mistake is not a defense to trespass to chattels. Defendant is liable even though he did not intend or recognize the legal significance of his act

Conversion Destruction/Serious Interference Element 2 (Intentional Torts)

This is an interference with plaintiffs property interest that is more serious than in a trespass to chattels

Conversion Conversion Acts Examples (Misc) (Intentional Torts)

A. wrongful acquisition (theft, embezzlement, receiving stolen property) B. wrongful transfer (selling, misdelivering, pledging) C. wrongful detention (withholding from owner) D. loss, destruction or severe damage E. material alteration F. misuse

Conversion Remedies (Misc) (Intentional Torts)

Plaintiff is generally permitted to elect either recovery of damages (usually fair market value plus consequential losses) or replevin/detinue/claim and delivery (compelling defendant to return a converted chattel, with recovery of damages attributable to its wrongful detention)

Conversion Remedies (Offer by Defendant to Return Chattel) (Misc) (Intentional Torts)

If the defendant offers to return plaintiffs chattel, this does not alleviate the conversion, and plaintiff need not (but may) accept the return

Conversion (Intentional Torts) Part 1

The Restatement 222A defines conversion as an intentional exercise of dominion and control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel
Only very serious harm to the property or other serious interference with the right of control constitutes conversion. Damage or interference which is less serious may still constitute trespass to chattel Purchasing stolen property, even if the purchaser was acting in good faith and was not aware the seller did not have title, constitutes conversion by both the seller and innocent buyer

Conversion (Intentional Torts) Part 2

Conversion (Intentional Torts)

Conversion is a voluntary and intentional act that causes the destruction of or lengthy interference with use of plaintiffs personalty


Custom typically refers to a well-defined and consistent way of performing a certain activity, often among a particular trade or industry. The plaintiff may try to assert the defendant's deviation from custom as evidence of lack of due care. Conversely, the defendant may try to avoid liability by showing compliance with custom


Damages in torts constitute the money awarded to the person injured by the tort of another Tort damages include nominal damages, compensatory damages, and punitive damages

Damages (Negligence) (3 Types)

1. Special damages quantifiable dollar losses suffered from the date of defendant's negligent act 2. General damages Damages that are not quantified in monetary terms 3. Punitive damages meant to punish a defendant


A misrepresentation made by the defendant with the requisite intent and knowledge which causes the plaintiff to suffer damages

Defamation Rule

An intentional false publication, communicated publicly in either oral or written form, subjecting a person to scorn, hatred or ridicule, or injuring him or her in relation to his or her occupation or business
At common law, defamation was a strict liability tort. As such, a plaintiff could recover without proving any fault on the part of the defendant. Furthermore, the falsity of the allegedly defamatory statement was presumed. Finally, in most instances, damages were presumed. Thus, in most common law defamation actions the plaintiff only had to prove

Defamation Common Law Part 1

Defamation Common Law Part 2

(1) a defamatory statement (2) about the plaintiff (3) that was "published." The defendant then had the opportunity to try to assert a defense, such as the truth of the statement. Thus, at common law, a defendant could quite unwittingly defame another and be responsible for significant damages

Defamation Group Defamation

Sometimes defamatory communications do not specifically name individuals but ascribe discrediting behavior to unnamed members of a group. If the group is small and the defamatory sting may attach to each group member, each member of the group may bring a defamation action. The larger the group, the less likely it is that a court will permit a defamation action by all the affected group members

Defamation Corporate Plaintiffs

Corporations and other business entities may be defamation plaintiffs where the communication tends to cast aspersions on their business character, such as trustworthiness, or deters third parties from dealing with them. Where the attack is on a product, the action is typically for product disparagement
A plaintiff must establish that the defamatory communication was published, meaning that it reached one person other than the defamation plaintiff. The plaintiff must show that either the defendant intended to publish the information or was negligent in so doing. Any repetition of a defamation is considered publication, even if the republisher attributes the statement to the initial source
In most defamation cases, a plaintiff's reputational injury may be presumed, permitting the plaintiff to recover compensation without any proof beyond the defamatory nature of the communication. General damages provide compensation for the emotional trauma and harm suffered by the plaintiff whose reputation was besmirched

Defamation Publication and Republication

Defamation General Damages (Damages)

Defamation Special Damages Damages

The plaintiff must plead and prove a specific type of loss, called "special damages," in order to prevail. Special damages are specific economic losses flowing from the defamation

Defamation The Libel/Slander Distinction

Slander is an oral utterance while libel is a more permanent expression

Defamation Slander per Se 4 traditional categories

(1) communications that directly call into question the plaintiff's competence to perform adequately in her trade or profession; (2) statements claiming the plaintiff has a current, loathsome disease; (3) allegations of serious criminal misbehavior by the plaintiff; (4) and, suggestions of a lack of chastity in a woman

Defamation Substantial Truth Common Law Defenses

At common law, the defamatory communication was presumed false, and it was incumbent upon the defendant to establish truth as a defense. While the defendant had to show the accuracy and truth of the statement in issue, she did not have to show the literal truth of every aspect substantial truth is the test
Typically arise in governmental proceedings involving judicial, legislative and executive communications. In the judicial context, statements made in court or in official court papers are absolutely privileged as long as relevant to the court proceeding. A similar absolute privilege applies to legislators and high-level executive officers. An absolute privilege protects a defendant even if she knew the statement was false or published it in order to harm the plaintiff's reputation

Defamation Absolute Privileges

Defamation Public Officials

A public official could only prevail in a defamation action where the public official shows that the defendant either knew that the statement was false or recklessly disregarded whether the communication was false, a fault standard known as "actual malice

Defamation Private Persons

The current state of the law in the private plaintiff context requires that the subject matter of the defamation be analyzed to discern whether it deals with matters of public concern or matters of private concern
The Court determined that states could permit private plaintiffs to recover damages for "actual injury," defined as proven "impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering," under any standard other than strict liability
The exact standard remains uncertain because the Court has yet to clarify its decision in Dun & Bradstreet v. Greenmoss, Inc., In Dun & Bradstreet, the plurality held that the Constitution does not require that a private plaintiff suing in a case involving a matter of private concern prove actual malice to recover presumed and punitive damages

Defamation Public Concern Private Persons

Defamation Private Concern Private Persons

Defamation Actual Malice

The fault standard of actual malice requires the plaintiff to prove that either the defendant knew of the falsity or was reckless as to truth or falsity. A plaintiff must prove that the defendant was at least reckless, a standard compelling proof that the defendant had "in fact entertained serious doubts as to the truth of his publication."

Defense of Others Rule (Intentional Torts Defenses)

Defendant is entitled to defend another person from an attack by the plaintiff to the same extent that the third person would be lawfully entitled to defend himself from plaintiff

Defense of Others Common Law View (Intentional Torts Defenses)

Under the traditional common law rule, the defense of third persons doctrine could be asserted by a defendant only if she acted to protect members of her immediate family

Defense of Others Modern/Majority View (Intentional Torts Defenses)

The modern trend and now majority view holds there is a privilege to use reasonable force to protect a third party whenever the actor reasonably believes a third party is entitled to exercise selfdefense In a majority of jurisdictions, a defendant who makes a mistake about whether defense of a third person is justified (or as to the degree of force which is reasonable) as against an apparent attack by plaintiff cannot assert the defense and will be liable to the plaintiff for an intentional tort
A minority of jurisdictions applies a reasonable mistake doctrinedefendant is relieved of liability where the third person would not be permitted to assert self-defense against plaintiff if a reasonable person in defendants position would have believed that defense of the third person was justified, and that defendants action was necessary to prevent harm to the third person

Defense of Others Defendant Liable If Mistaken (Majority View) (Intentional Torts Defenses)

Defense of Others Defendant Liable If Mistaken Reasonable Mistake Doctrine (Minority View) (Intentional Torts Defenses)

Defense of Property Rule (Intentional Torts Defenses)

An individual is privileged to use reasonable force to prevent a tort against her real or personal property

Defense of Property Reasonable Force (Intentional Torts Defenses)

The amount of force used by defendant must be no greater than necessary to prevent the threatened harm. In addition, it is never permissible to use deadly force to protect ones property from injury Even slight force is unreasonable in defense of property if it is excessive. Consequently, if a verbal request would suffice, no force is justified The use of deadly force or force likely to cause serious bodily harm is not justified unless the intruder threatens the occupants' safety, by committing or intending to commit a dangerous felony on the property. Additionally, the homeowner may not eject a non-threatening trespasser or invited guest when doing so would subject that person to serious physical harm

Defense of Property Defense of Habitation Modern View (Intentional Torts Defenses)

Defense of Property Defense of Habitation Traditional Common Law View (Intentional Torts Defenses)

The traditional common law view, still reflected in the Restatement, but increasingly discredited, would authorize the use of deadly force when needed to prevent mere intrusion into a dwelling

Defense of Property Mechanical Devices (Intentional Torts Defenses) Part 1

Intentional mechanical infliction of deadly force, such as by the use of spring guns, is not privileged unless, in fact, such force was justified to defend oneself or another from deadly force.

Defense of Property Mechanical Devices (Intentional Torts Defenses) Part 2

Barbed wire fences and similar deterrents to enter land unlawfully are not generally perceived as intended to inflict death or serious bodily injury but are often designed only to deter entry. Whether liability ensues depends on whether the method of protecting the property under the circumstances was negligent

Defense of Property Need to Demand Plaintiff Desist (Intentional Torts Defenses)

Defendant must first demand that plaintiff desist the conduct which threatens injury to his property before defendant uses force in defense, unless it would be futile or dangerous to make such a demand

Defense of Property Reasonable Mistake (Intentional Torts Defenses)

A reasonable mistake will not excuse force that is directed against an innocent party

Defense of Property Recovery of Personal Property Rule (Intentional Torts Defenses)

Defendant may use reasonable force to promptly recover her personal property if tortiously dispossessed of that property by plaintiff

Defense of Property Only Reasonable Force May Be Used Element 1 (Intentional Torts Defenses)

Defendant may apply only the force reasonably necessary to recover the property against the plaintiff. Defendant may never use deadly force to recover property

Defense of Property Recovery Must be Prompt Element 2 (Intentional Torts Defenses)

Defendant must act with reasonable diligence to discover the dispossession and to recover his property. This has often been described by the courts as a requirement that the defendant be in hot pursuit of the tortiously dispossessing plaintiff (or guilty third party)

Defense of Property Merchants Privilege (Intentional Torts Defenses)

Many states have adopted a merchant's privilege, which allows stores to use reasonable force to detain a person for reasonable periods to investigate possible theft The merchant's privilege generally allows reasonable mistake, so an innocent customer cannot recover against the store, provided the store acted reasonably

Defense of Property Mistake (Intentional Torts Defenses)

The individual acts at her peril, however. If force is directed at an innocent party, privileged to possess the chattel, or against one acting out of a bona fide claim of right, whether or not such right is ultimately vindicated by the courts, the actor is liable even if the mistake was reasonable
1. 2. 3. 4. 5. 6. 7. 8. 9. Arrest Shopkeepers Privilege Consent Defense of Others Defense of Property Discipline Private Necessity Public Necessity Recapture of Chattels Self Defense

Defenses Intentional Torts

Due Process Clause

Clauses found in the Fifth and Fourteenth Amendments to the United States Constitution providing that no person shall be deprived of "life, liberty, or property, without due process of law."

Duty to Disclose

The duty owed by a fiduciary to reveal those facts that have a material effect on the interests of the party that must be informed

Duty to Protect/Aid

A moral duty and not one imposed by law; no liability attaches to those persons who fail to undertake a rescue or otherwise aid a person in need, absent a special relationship between them

Duty to protect Therapist

A therapist only has a duty to warn about threats that are serious, in the judgment of the therapist. These must be credible threats of physical violence to an identifiable victim.

Duty to rescue

A person does not have the duty to rescue another

Duty to rescue Exceptions

1. Defendants negligence creates a need to rescue 2. Where there is an undertaking to act by the defendant 3. Reliance created by the defendant 4. Where there is a special relationship

Duty to rescue Creating the Peril Exceptions

A well-established exception to the no-duty-to-rescue rule applies when the need for rescue arises because of the defendant's negligence

Duty to rescue Special Relations

Courts have imposed a duty to rescue when justified by a special relationship between the parties such as a common carrierpassenger, innkeeper-guest and ship captain-seaman
People generally have no obligation to intervene, once they do, a duty arises

Duty to rescue Undertaking to Act and Reliance

Under the traditional view, once a person undertakes to rescue, he must not leave the victim in a worse position; under the more modern view, the rescuer is obligated to act reasonably once he has begun to act

Duty to Warn and Control

The legal obligation to warn people of a danger

Duty to Warn and Control (Position)

Duty to warn refers to the responsibility of a counselor or therapist to inform third parties or authorities if a client poses a threat to himself or herself or to another identifiable individual.

Economic Torts Rule

1. Intentional Misrepresentation (Fraud) 2. Negligent Misrepresentation 3. Interference with Contract or

Prospective Advantage 4. Intentional Interference with Economic Expectation or Prospective Contractual Relations

Economic Torts Intentional Misrepresentation Rule (Economic Torts)

Actionable is an intentional misrepresentation by defendant, made with scienter, which is material, is justifiably relied upon by plaintiff, and causes damages to plaintiff
The traditional rule, followed by majority of jurisdictions, is that negligent misrepresentations are not actionable. Many of these jurisdictions nevertheless allow recovery where there is arguably no intentional misrepresentation, by resorting to legal fictions which permit their courts to find intent because defendants honestly held belief in the truth of his assertion is unreasonable

Economic Torts Negligent Misrepresentation Rule Traditional Rule (Economic Torts)

Economic Torts Negligent Misrepresentation Rule Minority Rule (Economic Torts)

A few states permit plaintiff to recover for defendants negligent misrepresentation

Economic Torts Intentional Interference with Contract Rule (Economic Torts)

This tort is committed when defendant intentionally causes a third person to breach an existing contract with plaintiff

Economic Torts Intentional Interference with Economic Expectation or Prospective Contractual Relations (Economic Torts)

Allows recovery when the defendant intentionally and unjustifiably disrupts the victim's economic expectations not embodied in an actual contract

Economic Torts (Intentional Interference with Contract and Economic Expectations) Element in Common (Economic Torts) Part 1 Economic Torts (Intentional Interference with Contract and Economic Expectations) Element in Common (Economic Torts) Part 2 Economic Torts (Intentional Interference with Contract and Economic Expectations) Justification for Interference (Economic Torts)

The elements of the two torts are parallel. Interference with contract requires a valid contract while interference with economic expectation requires a legitimate economic expectancy. The elements of the two torts are, respectively:
(1) A valid contract or economic expectancy between the plaintiff and a third party. (2) Knowledge of the valid contract or economic expectancy by the defendant. (3) Intent by the defendant to interfere with the contract or economic expectancy. (4) Interference caused by the defendant. (5) Damages to plaintiff. (1) statements of truthful information or honest advice within the scope of a request; (2) interference by a person responsible for the welfare of another while acting to protect that person's welfare; (3) interference with a contract which is illegal or violates public policy; and (4) interference by someone when protecting his or her own legally protected interests in good faith and by appropriate means

Eggshell skull (thin skull doctrine)

If a defendant negligently injures someone, he is responsible for all the consequences, whether they were foreseeable or not. The defendant must "take their victims as they find them"
Conduct is considered extreme and outrageous if beyond all possible bounds of decency and to be regarded as atrocious, and utterly intolerable in a civilized society. Mere rude or callous behavior is generally insufficient.

Extreme and outrageous behavior

Failure to Warn

The failure of an owner or occupier of land to inform persons present on the property of defects or active operations which may cause injury

False Imprisonment (Rule) (Intentional Torts)

Defendant must act with intent to confine or restrain plaintiff to a bounded area and plaintiff knows of the conduct or is injured thereby

False Imprisonment Intentional Act Element 1 (Intentional Torts)

Defendant must act with intent to confine or restrain plaintiff to a bounded area

False Imprisonment Confinement or Restraint Element 2 (Intentional Torts) Part 1

For false imprisonment to exist, the victim must be confined or restrained. The confinement may be accomplished by (1) physical barriers;

False Imprisonment Confinement or Restraint Element 2 (Intentional Torts) Part 2

(2) force or threat of immediate force against the victim, the victim's family or others in her immediate presence, or the victim's property; (3) omission where the defendant has a legal duty to act; or (4) improper assertion of legal authority

False Imprisonment Consciousness of Confinement Element 3 (Intentional Torts)

False imprisonment requires that the victim be conscious of the confinement at the time of imprisonment

False Imprisonment Accidental Confinement (Misc) (Intentional Torts)

Accidental confinement is not included and must be addressed under negligence or strict liability

False Imprisonment Resistance or Escape (Misc) (Intentional Torts)

Plaintiff is under no duty to resist if the defendant uses or threatens to use physical force (and the threat appears credible). A plaintiff is not confined if there is a reasonable means of escape of which she is actually aware

Foreseeable Plaintiff Requirement

The defendant owes a duty to foreseeable victims for foreseeable harm. Thus, in order to establish a duty, the plaintiff must show that defendant's negligence created foreseeable risks of harm to persons in her position

Foreseeability (Duty of Care)

A defendant owes a duty of care to all persons who are foreseeably endangered by his or her conduct, with respect to all risks which make that conduct unreasonably dangerous.


A false representation of facts with the intent that another will rely on the misrepresentation to his detriment

Fraudulent Misrepresentation 5 elements

(1) a material misrepresentation; (2) the defendant acted with the requisite scienter: she knew the statement was false or made it with reckless disregard as to its truth or falsity; (3) the defendant intended to induce reliance; (4) the misrepresentation caused plaintiff's justifiable reliance; (5) pecuniary damages resulted to the plaintiff

Fraudulent Misrepresentation Duty to Disclose

Traditional law did not require a duty to disclose. Modern law now requires disclosures under special circumstances, including when the defendant owes a fiduciary duty, where the defendant has concealed material information or misled the victim earlier

General duty of care

We all owe a general duty of care to one another to act in a reasonable manner under the circumstances

Good Samaritan Law

A statute relieving a bystander from tort liability for the attempted rescue of another

Governmental Immunity

Refers to immunity of federal, state and local governments from liability for torts except when consented to


Exemption from a legal obligation

Immunities (Defenses to Tort Liability)

An immunity protects a defendant from tort liability. Unlike a defense, it is not dependent on the plaintiff's behavior, but on the defendant's status or relationship to the plaintiff

Immunities 4 Types (Defenses to Tort Liability)

1. Charitable Immunity 2. Spousal Immunity 3. Parent-Child Immunity 4. Governmental Immunity

Immunities - Charitable Immunity (Defenses to Tort Liability)

Historically, charitable organizations were immune from tort liability. Increasingly, this immunity has been abrogated

Immunities - Spousal Immunity (Defenses to Tort Liability)

Historically, spouses could not sue each other. The majority of states have eliminated spousal immunity

Immunities - Parent-Child Immunity (Defenses to Tort Liability)

Parent-child immunity precludes tort actions between parents and their nonadult children. Unlike spousal immunity, which has been eliminated in most states, parent-child immunity still exists in some form in many jurisdictions
Governmental immunity protects the government from tort liability. Under the common law, the immunities were complete and prevented any tort suits against the government. Many states and the federal government have passed detailed statutes modifying the immunities in specific instances. One general provision normally included allows immunity for discretionary functions but not ministerial acts. Discretionary functions are policy-making decisions. Ministerial acts constitute government conduct which implements or executes policy decisions

Immunities - Governmental Immunity (Defenses to Tort Liability)

Implied assumption of the risk (Negligence Defense) objective

You can consent without saying so if a reasonable person would consider the activity hazardous to ones health

Implied Warranty

An implied promise made by one party to a contract that the other party may rely on a fact, relieving that party from the obligation of determining whether the fact is true and indemnifying the other party from liability if that fact is shown to be false


The duty of a party to compensate another for damages sustained

Indemnity (Common Law)

A "passive" tortfeasor may recover in full for any damages paid for an injury caused by an "active" tortfeasor

IIED Rule (Intentional Torts)

Exists when the defendant, by extreme and outrageous conduct, intentionally or recklessly causes the victim severe mental distress

IIED Extreme & Outrageous Conduct Element 1 (Intentional Torts)

Behavior which is beyond all possible bounds of decency and to be regarded as atrocious, and utterly intolerable in a civilized community The vulnerability of the victim and the relationship of the defendant to the victim can be critical For recovery under intentional infliction of emotional distress, the plaintiff must prove that the defendant intended to cause severe emotional distress or acted with reckless disregard as to whether the victim would suffer severe distress

IIED Intent or Recklessness to Cause Severe Mental Distress Element 2 (Intentional Torts)

IIED Intent or Recklessness to Cause Severe Mental Distress Element 3 (Intentional Torts)

Plaintiff must prove that the distress suffered was severemore than the level of mental distress a reasonable person could be expected to endure. The more outrageous the defendants conduct, the easier it will be for plaintiff to establish the requisite mental injury

IIED Vulnerable Plaintiff Extreme & Outrageous Conduct (Extreme & outrageous behavior) (IIED)

If the defendant knows that the plaintiff is vulnerable because of age, mental illness, or physical illness, it is usually easier to establish that the conduct was extreme or outrageous.

IIED No Need for Physical Injury (Misc) (Intentional Torts)

Most states no longer require the plaintiff to show that actual physical injury accompanied the severe emotional distress

IIED Transferred Intent? (Misc) (Intentional Torts)

Intentional infliction of mental distress is not one of the five historic intentional torts that transfers intent between these torts and between victims Courts awarded a third-party victim recovery only if, in addition to proving the elements of the tort, she is (1) a close relative of the primary victim; (2)

present at the scene of the outrageous conduct against the primary victim; and (3) the defendant knows the close relative is present

IIED Exception for Common Carriers and Innkeepers (Intentional Torts)

Common carriers and innkeepers are liable for intentional gross insults which cause patrons to suffer mental distress. There is no requirement the defendant behave in an extreme or outrageous manner or that the victim suffer extreme distress

Intent (General) (Intentional Torts)

All intentional torts require the defendant to have a certain mental state when he performs the wrongful act. This mental state is called intent.

Intent (Rule) (Intentional Torts)

Intent is established if the defendant either (1) desires that his act will cause the harmful result described by the tort or (2) is substantially certain that such a result will occur As to intentional torts, the defendants act (direct causation) or a force set in motion by that act (indirect causation) must cause the plaintiffs injury

Intent Causation (Intentional Torts)

Intent Incompetency (Intentional Torts)

The fact that a defendant is mentally incompetent, or is a minor, does not preclude a finding that he possessed intent to commit an intentional tort

Intent - Transferred Intent (Intentional Torts) Part 1

If a defendant acts with the necessary intent to inflict certain intentional torts but for some reason causes injury to a different victim than intended, the defendants intent is transferred to the actual victim. This transfer of intent applies only to assault, battery, false imprisonment, and trespass (to land or to chattels).

Intent - Transferred Intent (Intentional Torts) Part 2

If the defendant intended to commit one tort, but another tort resulted, the intent can be transferred from the intended tort to the resulting tort

Intent Voluntary Act (Intentional Torts)

A defendant is generally not held liable in tort for acts which are not voluntary. Acts are not voluntary if they are a product of pure reflex or if the defendant is unconscious when the act was performed

Intentional Tort

A legal wrong resulting in a breach of duty, which is intentionally or purposefully committed by the wrongdoer

Intentional Torts (6 types)

1. 2. 3. 4. 5. 6. 7.

Assault Battery Conversion False Imprisonment IIED Trespass to Chattels Trespass to Land

Intervening Cause

An intervening cause that is unforeseeable breaks the chain of causation and relieves Plaintiff of further liability

Invasion of Privacy Rule 4 Torts

1. Intrusion upon seclusion 2. Appropriation of plaintiff's name or picture 3. Placing the plaintiff in a false light before the public 4. Public disclosure of private facts One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person zone of privacy.
One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.

Invasion of Privacy - Intrusion upon seclusion

Invasion of Privacy - Appropriation of plaintiff's name or picture

The tort applies to an unauthorized endorsement of a product. [See, e.g., Flake v. Greensboro News Co., 195 S.E. 55 (N.C. 1938).] It does not, however, apply to journalistic articles or books

about a person The elements of false light which must be established by all plaintiffs include the defendant's (1) publicizing (2) false facts (3) that a reasonable person would object to The tort elements include (1) publicity of (2) private facts (3) highly offensive to a reasonable person which are (4) not of a legitimate public interest

Invasion of Privacy - Placing the plaintiff in a false light before the public

Invasion of Privacy - Public disclosure of private facts

Invitee v. Licensees Land Access

An invitee is one who is not only invited, but also stays within the scope of the invitation. This differs from licensees who are also invited, but not to the economic advantage of the landowner. Social guests are usually licensees

Joint and Several Liability Joint Tortfeasors

Joint tortfeasors are two or more individuals who either (1) act in concert to commit a tort, (2) act independently but cause a single indivisible tortious injury, or (3) share responsibility for a tort because of vicarious liability
Under traditional common law, each joint tortfeasor is jointly and severally liable for the plaintiff's total damages. This means that each individual is fully liable to the plaintiff for the entire damage award. If the plaintiff is unable to collect a co-tortfeasor's portion of the liability, the tortfeasor(s) from whom the plaintiff can collect are responsible for the other tortfeasor's (s') share

Joint and Several Liability Common Law

Joint and Several Liability Acting in Concert

Acting in concert is the tort equivalent of being a criminal accessory or coconspirator. If an individual intentionally aids or encourages another to commit a tort, he is as liable as the individual who actually committed the physical acts of the tort

Joint and Several Liability Independent Acts Causing a Single Indivisible Injury

Two or more individuals who act independently but whose acts cause a single indivisible tortious injury are also joint tortfeasors

Joint and Several Liability Vicarious Liability

A defendant may be jointly liable for the actions of another through vicarious liability. Vicarious liability automatically imposes tort responsibility on a defendant because of his relationship with the wrongdoer. The most frequent example of vicarious liability is when employers are held liable under a theory of respondeat superior for the actions of employees within the scope of their employment Traditionally, each liable defendant, if able, paid an equal pro rata share of the damages to the plaintiff based on the number of joint tortfeasors Under a comparative approach, instead of dividing liability equally by the number of joint tortfeasors, liability is divided by the proportion of responsibility each tortfeasor bears to the plaintiff for his injury

Joint and Several Liability Allocations of Liability Among Joint Tortfeasors

Joint and Several Liability Rule

A plaintiff may recover from each defendant the total amount of possible recovery from any one of defendants found to be jointly and severally liable to the plaintiff for causing the injury

Judgment N.O.V.

A judgment entered by the trial judge reversing a jury verdict if the jury's determination has no basis in law or fact

Latent Defect

A defect that cannot be discovered upon ordinary examination

Libel (Defamation)

Libel is defined as defamation by written or printed words, pictures, or in any form other than by spoken words or gestures

Libel (elements) (Defamation)

A false or malicious publication that subjects a person to scorn, hatred or ridicule, or that injures him in relation to his occupation or business of such an extreme nature that the law will presume that the person has suffered such injury

Loss of Consortium

An action brought based on willful interference with the marital relationship.


The intention to commit an unlawful act with the intent to inflict injury without justification or excuse

Market Share Liability

The apportionment of liability between each participant in an industry equal to the participant's market share

Medical Malpractice Proof Issues in Medical Malpractice

Plaintiff must show more than an unwanted result. Nor is the coming about of an inherent risk proof of malpractice. Plaintiff must show that the defendant doctor's deviation from customary practice caused plaintiff's injury Conduct on the part of a doctor falling below that demonstrated by other doctors of ordinary skill and competency under the circumstances, resulting in damages

Medical Malpractice

Medical Malpractice Patient Rule

A physician is obligated to disclose to a patient all material risks involved in a given procedure or treatment


Misfeasance is acting badly; in a way that creates or increases the harm suffered by the plaintiff. The general rule for misfeasance is that when one acts, one must do so reasonably, and failure to adhere to this reasonableness standard will result in liability

Mistake of Fact

An unintentional mistake in knowing or recalling a fact without the will to deceive

Mistake Doctrine

if a defendant intends to do acts which would constitute a tort, it is no defense that the defendant mistakes, even reasonably, the identity of the property or person he acts upon or believes incorrectly there is a privilege

1. Malicious prosecution Misuse of the Legal System 3 Torts 2. The parallel tort of malicious institution of civil proceedings 3. Abuse of process

Misuse of the Legal System -Malicious prosecution

Malicious prosecution addresses wrongful criminal prosecution of an innocent defendant in bad faith

Misuse of the Legal System Malicious institution of civil proceedings

Malicious institution of civil proceedings addresses wrongful institution of a civil proceeding against a non-liable defendant in bad faith
Malicious prosecution [see Restatement 653] addresses wrongful criminal prosecutions while malicious institutions of civil proceedings addresses wrongful civil proceedings. [See Restatement 677-679.] Otherwise, the elements of the two torts are similar and generally

Misuse of the Legal System -Malicious prosecution v. Malicious institution of civil proceedings Part 1


Misuse of the Legal System -Malicious prosecution v. Malicious institution of civil proceedings Part 2

(1) institution or continuation of a criminal or civil proceeding against the accused; (2) termination of the proceeding in favor of the accused; (3) absence of probable cause for prosecution or civil proceedings; (4) improper purpose of the accuser; and (5) damages suffered by the accused

Misuse of the Legal System Abuse of process

Abuse of process constitutes the intentional misuse of either a civil or criminal legal process such as depositions, subpoenas and property attachments for an ulterior purpose resulting in damage to the plaintiff Although a prosecutor is immune from liability under malicious prosecution, others who wrongfully instigate a prosecution can be held liable

Misuse of the Legal System Prosecutorial Immunity Malicious prosecution


Reduction in penalty

Necessity Public Necessity Rule (Intentional Torts Defenses)

If the entry was privileged due to public necessity, both the entry and duty to pay for damages caused are both excused Defendant incurs no liability for tort or damages (Complete Defense)

Necessity Private Necessity Rule (Intentional Torts Defenses)

An individual has the privilege to interfere with the property right of another to avoid a greater harm, but must compensate the plaintiff for the interference Defendant not liable for tort, but still liable for damages (Incomplete Defense)
1. Duty - Defendant owed a legal duty to plaintiff. 2. Breach - Defendants conduct breached that duty. 3. Causation - Defendants breach of duty was the actual and legal (proximate) cause of injury to plaintiff. 4. Damages - Plaintiff suffered damages as a result of defendants conduct.

Negligence Rule Plaintiff must prove each of the following four elements

Negligence Duty of Care Element 1 of Negligence Claim Negligence

When a party acts, a duty of reasonable care is owed to persons who might foreseeably be injured by that act

Negligence Duty of Care (Elements) Negligence Part 1

1. foreseeability of harm, 2. the degree of certainty that plaintiff suffered injury, 3. the closeness of the connection between the defendants action and the injury, 4. the moral blame of the defendant, the policy of preventing future harm, 5. the extent of the burden to the defendant and the consequences to the community of imposing a duty on the defendant to exercise care with its resulting liability for breach, 6. and the availability, cost, and custom of obtaining insurance for the risk involved.

Negligence Duty of Care (Elements) Negligence Part 2

Negligence General RuleNo Duty to Act for the Protection of Others Rule Negligence

The traditional rule is that there is no affirmative duty to take action (as opposed to doing nothing) to aid or protect a plaintiff who is at risk of injury unless such action is taken

Negligence Defendant takes action of promises to do so (No Duty to Act Exceptions) Negligence

In general there is no duty to act; however, when one acts affirmatively they have a duty to act as a reasonable person would under similar circumstances.

Negligence Special Relationship (No Duty to Act Exceptions) Negligence

(1) duty to care for Plaintiff, (2) duty to control others, and (3) duty to warn plaintiff of danger

Negligence duty to care for Plaintiff Special Relationship (No Duty to Act Exceptions) Negligence

(a) employer/employee (during and in the scope of employment), (b) common carrier and innkeeper/ customer, (c) school/pupil, (d) parent/child, and (e) jailer/prisoner

Negligence duty to control others Special Relationship (No Duty to Act Exceptions) Negligence

(a) employer/employee, (b) parent/child, (c) bailor/bailee (e.g., car owner/driver), (d) partner or joint enterpriser / another partner or joint enterpriser, and (e) in some circumstances, dispenser of liquor/customer

Negligence duty to warn plaintiff of danger Special Relationship (No Duty to Act Exceptions) Negligence

(a) psychotherapist-patient and (b) custodian/prisoner or patient

Negligence Duty of Care Adult Activities Negligence

Many jurisdictions have concluded that children should not be entitled to special treatment when they are engaged in adult or inherently dangerous activities, such as driving a car

Negligence Duty of Care Business Owner Negligence

In determining whether a business owner owes a duty to protect its customers against the criminal acts of third persons, the foreseeability and gravity of harm must be balanced against the commensurate burden imposed on the business to protect against that harm

Negligence - Duty of Care Child Activities Negligence

Child activities include the kinds of things children usually play, such as games, slides, teeter-totter, etc

Negligence Duty of Care Children Negligence

Most states use a standard of a reasonable child of the same age, intelligence, experience, and education. Some states still set a minimum age for a child to be negligent (e.g., children presumed incapable of negligence before age 6). In those states, the presumption is usually rebuttable. But, in all states, children engaged in "adult activities" will usually be held to an adult standard of care

Negligence Duty of Care Common Carriers Negligence

Common carriers are bus companies, airlines, passenger railroads, shuttle servicesthe type of businesses that transport people. They owe a duty of highest care.

Negligence Duty of Care Guest Statute Negligence

A guest statute precludes guests in a car from holding the driver liable for injuries resulting from the negligence of the driver thats obviously a lower duty of care than usual. However, a driver will be liable if he engages in wanton, reckless, or intentional conduct. Guest statutes are in an extreme minority today. Nearly all states allow passengers to sue drivers

Negligence Duty of Care Landowner Negligence

Concerning licensees or trespassers, a landowner has a duty to refrain from willful reckless conduct; and if a plaintiff is discovered to be in a position of peril, then the landowner has a duty to use reasonable care. For invitees, a landowner would have a duty to discover and avoid the danger

Negligence Duty of Care California Law Landowner Negligence

Under CA law, landowners owe a duty of reasonable care to people on their land. California is one of a handful of states that has applied the general duty irrespective of the status of the person on in the land

Negligence Duty of Care Special Relationship Negligence

An individual has no duty to warn another individual about a criminal attack by a third party, absent a special relationship between the parties.

Negligence Duty of Care Combative Mentally Disabled Person Negligence

No duty is owed by a combative mentally disabled person to his caretaker because one who is employed to take care of combative patients has no cause of action against a patient who injures him while under his care. However, this same mentally disabled person would owe a duty of reasonable care to persons other than his employed caretakers

Negligence Duty of Care Landlord Negligence

If the landlord is renting to a tenant, the tenant owes a duty of reasonable care to invitees to inspect and repair. Although the landlord is the landowner, duties owed to invitees, licensees, and known trespassers are owed by the tenant, not by the landowner who is renting out the premises. However, the landlord owes a duty of care for hidden defects in the premises. For example, if loose shingles are not apparent, or where the landlord has affirmatively acted, but negligently made repairs

Negligence Duty of Care Land Occupier (Common Law) Negligence

The common law approach to landowner liability measures the duty owed by a land occupier to persons entering the property by the status of the entrant. Because of the value attached to private land ownership, the law developed in a way that was highly protective of these interests A trespasser is one who enters or remains on the property in the possession of another without the permission (express or implied) of the land occupier. The duty owed to trespassers was (and in many ways remains) extremely limited. The only obligation initially imposed on land possessors was to refrain from wilfully harming the trespasser

Negligence Duty of Care Land Occupier Trespassers (Common Law) Negligence Negligence Duty of Care Land Occupier Children (Attractive Nuisance Doctrine) (Common Law) Negligence

Under the Restatement a child trespasser will be owed a duty of ordinary care if a judge balances several factors and finds that they support providing the child trespasser special treatment

Negligence Duty of Care Land Occupier Licensees Duty of Care (Common Law) Part 1 Negligence Negligence Duty of Care Land Occupier Licensees Duty of Care (Common Law) Part 2 Negligence

A licensee is someone who enters the land with the express or implied consent of the land possessor, as is the case with social guests. The licensee takes the property in the condition in which the land possessor uses it. A land possessor may be liable to a licensee injured by a condition on the property where the land possessor knows of a dangerous condition on the property, fails to make the condition safe or to warn the licensee about the risk involved, and the licensee does not know about the danger nor would be expected to discover the dangerous condition. Where the presence of a licensee is known or should be known to the defendant, most jurisdictions require land possessors to use reasonable care in carrying out activities on the property

Negligence Duty of Care Land Occupier Invitees (Common Law) Negligence

Business invitees are on the premises for the potential financial benefit of the land occupier. Public invitees are on land held open to the public at large. As to invitees, land possessors must use reasonable care in maintaining the premises and in their activities. This often entails taking affirmative steps to discover dangers on the property. The obligation of the land possessor to an invitee then is one of reasonable care

Negligence Duty of Care Land Occupier California Unitary Standard Negligence

Under this approach a duty of reasonable care is owed any land entrant regardless of status, whether licensee or invitee
(1) School district employees directly responsible for students have an affirmative duty to aid and protect students those employees know or should know are being sexually abused. (2) Supervisory employees in a school district have an affirmative duty to avoid negligently hiring or retaining employees they know or should know are sexual abusers. No duty arises under this theory if there is not a direct custodial relationship.

Negligence Duty of Care School District Negligence

Negligence Duty of Care Therapists Negligence

Once a therapist knows or should know that his patient presents a real danger to a third party, there is a duty to warn or otherwise take reasonable actions to prevent the danger.

Negligence Duty of Care Taverns/Dram Shops Negligence

A tavern may be liable to one injured by an intoxicated patron of that tavern.

Negligence Duty of Care Common Law relationship exceptions Negligence

1. Common carrier-passenger, 2. innkeeper-guest, 3. business invitor-invitee, 4. and voluntary custodian-protectee.

Negligence Duty of Care Attractive Nuisance Doctrine Negligence

The assignment of liability to an owner or occupier of land who permits a dangerous instrumentality to remain on the property, knowing that it is likely to attract children who have access to it, and who fails to take reasonable steps to prevent such injury
Judge Learned Hand suggests we look at the following three factors to determine if the defendant has breached a duty of reasonable care: 1) probability of harm and 2) gravity of harm as weighed against 3) the burden on defendant to take adequate precautions

Negligence Breach of Duty Judge Learned Hand Negligence

Negligence Breach of Duty Element 2 of Negligence Claim Negligence

Breach of duty occurs when a person who owes a duty of care acts unreasonably, thereby causing harm to the plaintiff

Negligence - Breach of Duty Three ways to prove Negligence

Three ways to prove: 1) proof of defendants unreasonable conduct (Learned Hand balancing test); or 2) proof of violation of statute (negligence per se); or 3) proof of elements of res ipsa loquitur

Negligence Learned Hand Breach of Duty Rule Element 1 of Breach of Duty (Breach of Duty) Negligence Negligence Learned Hand Breach of Duty Formula (Breach of Duty) Negligence Negligence per se Rule (Elements) (Breach of Duty) Negligence

If the burden of taking precautions is less than the probability of injury times the severity of that injury, plus the social utility of defendants activity, defendant breached his duty of care by not taking such precautions

Learned Hand (calculation)


Where B = the burden which the defendant would have had to bear to avoid the risk. L = the gravity of personal injury. P = the probability that harm will occur from the defendants conduct
o Statute - Occurs when a statute identifies a standard of conduct o Type of harm - The statute was intended to prevent the type of harm o Class to be protected The plaintiff must be in the class of people that the statute was designed to protect o Causation The violation of the statute must be the proximate cause of the harm suffered

Negligence per se Rule Element 2 of Breach of Duty (Breach of Duty) Negligence

The negligence-per-se doctrine provides that in certain situations a criminal statute (or administrative regulation or municipal ordinance) may be used to set the standard of care in a negligence case and show Breach

Negligence per se Children (Misc) (Breach of Duty) Negligence Negligence - Res Ipsa Loquitur Rule Element 3 of Breach of Duty Breach and further requirements (Circumstantial Evidence) Negligence

Most jurisdictions have concluded that the child standard of care should apply even where the child has violated a statute. Rather than using the statute as the standard of care, the standard is that of a reasonable child of the same age, maturity, intelligence and experience

Proving the three elements establishes an inference allowing the jury to find that the defendant breached a duty of care. The plaintiff must still show causation and that the plaintiff has suffered damages to prevail.

Negligence - Res Ipsa Loquitur (Elements) (Circumstantial Evidence) Negligence Negligence Causation Rule Element 3 of Negligence Claim Negligence

1) the harm suffered is most likely caused by negligence of someone; 2) it is more likely that it was defendants negligence (or defendant had exclusive control of object that caused the harm); and 3) the plaintiff was not at fault

The intent and the act have to cause the injuries suffered 1. Cause-in-fact (Actual Cause) 2. Proximate Cause

Negligence - Actual Cause Rule Element 1 of Causation (Actual Cause) (Causation) (Negligence) Negligence - But-for-test Rule (Actual Cause) (Causation) (Negligence)

Defendants breach of duty must have been the cause-in-fact of plaintiffs injury

The plaintiff must prove that but-for the defendants act, plaintiff would not have been injured If there is but one cause of plaintiffs injury apply the but-for test
The defendants act was a substantial or material factor in causing the plaintiffs injury When the conduct of two or more defendants results in injury to plaintiff, and each individual defendants conduct, taken alone, would have been sufficient to directly cause the injury

Negligence - Substantial Factor Test (Actual Cause) (Causation) (Negligence)

Negligence - Actual Cause Summer v. Tice Test (Actual Cause) (Causation) (Negligence)

Holds that where two parties are equally negligent, but only one causes an injury to a third party, the burden shifts to the negligent parties to prove that they were not the cause of the injury

Negligence - Actual Cause Market Share Test (Actual Cause) (Causation) (Negligence)

When the injury resulted from conduct engaged in by several defendants, each acting independently, but plaintiff cannot identify which particular defendants conduct actually injured him, each defendants conduct may be regarded as a cause-in-fact of plaintiffs injury. Liability is apportioned among the defendants by percentage or market share

Negligence - Actual Cause v. Proximate Cause (Causation) (Negligence)

The difference between actual cause and proximate cause is that actual cause is only concerned with WHETHER the plaintiffs injury resulted from the defendants conduct. Proximate cause examines HOW the plaintiffs injury resulted from the defendants conduct. If the plaintiffs injury is sufficiently unexpected or bizarre, then the defendant is not liable the proximate cause analysis cuts off liability

Negligence Proximate Cause Rule Element 2 of Causation (Actual Cause) (Causation) (Negligence)

There must be a causal relationship between the defendants act and the victims death

Proximate Cause Legal Cause (Elements)

1. The type of harm or injury must be foreseeable 2. The class of plaintiff must be foreseeable

Negligence Proximate Cause 4 Elements Element 2 of Causation (Proximate Cause) (Causation) (Negligence) Negligence Proximate Cause Foreseeability Test Definition (Proximate Cause) (Causation) (Negligence)

1) unforeseeable plaintiffs; 2) unforeseeable intervening events; 3) unforeseeable types of injuries; or 4) an unforeseeable manner of injury
The leading test for proximate cause focuses on whether the defendant should have reasonably foreseen, as a risk of her conduct, the general consequences or type of harm suffered by the plaintiff. In essence, the foreseeable harm test requires (1) a reasonably foreseeable result or type of harm, and (2) no superseding intervening force. The extent and the precise manner in which the harm occurs need not be foreseeable

Negligence Proximate Cause Foreseeability Test Intervening Force (Proximate Cause) (Causation) (Negligence) Negligence Proximate Cause Foreseeability 2 things must be foreseeable if the act is to proximately cause the harm (Proximate Cause) (Causation) Negligence Proximate Cause v. Actual Cause (Proximate Cause) (Causation) (Negligence)

While foreseeability of consequences is generally required to find liability, courts make an exception and do not require that the type of personal injury suffered by a victim be foreseeable. The defendant is liable even if the victim suffers physical injury far more severe (e.g., heart attack) than the ordinary person would be anticipated to have suffered from the accident

1) the type of harm or injury must be foreseeable; and 2) the class of plaintiff must be foreseeable

The proximate cause analysis is concerned with proof that the injury was foreseeable, actual cause proof is concerned simply with the ability to trace the defendant's actions to the injury, and eliminate other possible factual causes Under Justice Cardozos view, stated in Palsgraff, a defendant is the proximate cause of injuries that are the reasonably foreseeable result of the defendants conduct. Alternatively, under Justice Andrews view, a defendant is the proximate cause of any injury that directly flows from defendants conduct. In determining whether there is a foreseeable plaintiff, the majority view, given by Justice Cardozo, is that if the defendants conduct was not negligent relative to the plaintiff, then the conduct was not negligent at all

Negligence Proximate Cause (Views Combined) (Proximate Cause) (Causation) (Negligence)

Negligence Proximate Cause (Majority View) (Judge Cardozo) (Zone of danger rule) (Proximate Cause) (Causation) (Negligence)

Negligence Proximate Cause (Majority View) (Judge Cardozo) (Zone of danger rule) (Proximate Cause) (Causation) (Negligence)

1. A duty that is owed must be determined from the risk that can reasonably be foreseen under the circumstances 2. A defendant owes a duty of care only to those who are in the reasonably foreseeable zone of danger

Negligence Proximate Cause (Minority View) (Judge Andrews) (Proximate Cause) (Causation) (Negligence) Negligence Proximate Cause (Minority View) (Judge Andrews) (Proximate Cause) (Causation) (Negligence)

The minority view, supported by Justice Andrews, states that if the defendants conduct is negligent toward any class of people, then that conduct is negligent to anyone who is actually injured

The duty to exercise care is owed to all, and thus a negligent act will subject the actor to liability to all persons proximately harmed by it, whether or not the harm is foreseeable

Negligence Defenses 3 Types Negligence

1. Contributory Negligence 2. Comparative Negligence 3. Assumption of the Risk

Negligence Defenses Contributory Negligence Rule Negligence

The negligence of the plaintiff that contributes to the accident. Its effect is that a plaintiff who is shown to be contributorily negligent is totally barred from recovery

Negligence Defenses Contributory and Comparative Negligence When Used? (Negligence Defenses)

Contributory and comparative negligence are doctrines to be used only with negligence and not with intentional torts. So if a plaintiff negligently puts himself in harms way, but the defendant commits an intentional tort against that person (i.e., the plaintiff walks in a dark alley in a bad neighborhood and is assaulted and robbed by the defendant), then the defendant is still liable for the intentional tort and cannot use the doctrines of contributory or comparative negligence to bar or reduce the plaintiffs recovery

Negligence Defenses Contributory Negligence Last Clear Chance Doctrine (Negligence Defenses)

The last clear chance doctrine instructs the court to ignore the plaintiff's contributory negligence if the defendant's negligence occurred after the plaintiff's contributory negligence Most jurisdictions reject the last clear chance doctrine when replacing contributory negligence with comparative negligence

Negligence Defenses -Comparative Negligence Rule (Negligence Defenses)

The plaintiff contributes to the accident, and the plaintiffs recovery is reduced by the percentage of his negligence

Negligence Defenses -Comparative Negligence Rule (Pure) (Negligence Defenses)

The plaintiff contributes to the accident, and the plaintiffs recovery is reduced by the percentage of his negligence

Negligence Defenses -Comparative Negligence Rule (Modified Jurisdiction) (Negligence Defenses)

If the plaintiff is 50% negligent or greater they will not recover anything

Negligence Defenses Assumption of the Risk Rule (Negligence Defenses)

Plaintiff assumes the risk of injury from defendants negligence if plaintiff expressly or impliedly consents to undergo the risk created by defendants conduct. Assumption of the risk bars plaintiff completely from recovery

Negligence Defenses Assumption of Risk Doctrine 3 Elements (Negligence affirmative defense)

The plaintiff must (1) know a particular risk and (2) voluntarily (3) assume it

Negligence Defenses Assumption of Risk Doctrine Express Assumption of Risk (Negligence affirmative defense)

Express assumption of risk exists when, by contract or otherwise, a plaintiff explicitly agrees to accept a risk It can be invalidated if it is found contrary to public policy. Conversely, courts are likely to uphold express assumption of risk when the plaintiff's participation is clearly voluntary, such as the decision to engage in risky recreational pursuits

Implied assumption of risk exists when the

Negligence Defenses Assumption of Risk Doctrine Implied Assumption of Risk (Negligence affirmative defense) Negligent Infliction of Emotional Distress

plaintiff's voluntary exposure to risk is derived merely from her behavior, and not from explicit assent The modern trend is to allow implied assumption of risk to be absorbed into comparative negligence. This allows the jury to treat assumption of risk as a partial defense In certain limited circumstances, negligently inflicted mental distress that does not follow from physical harm is recognized as a basis for recovery Traditionally, as a prerequisite to recovery for mental distress, the defendant's negligence must have caused some form of physical impact on the plaintiff's person

Negligent IIED

Violation of the duty of care owed to another that occurs when an individual creates a foreseeable risk of injury to the other person, which causes emotional distress resulting in some physical harm to that person

Nominal Damages (Tort Damages)

A small sum awarded to a plaintiff in order to recognize that he sustained an injury that is either slight or incapable of being established


Inaction that allows or results in harm to a person or to property


Nuisance is a substantial and unreasonable interference with the use or enjoyment of the owners or possessors property interest Nuisances can be either public or private The lawsuit can only be brought by a public official or public agency

Nuisance - Public

Private citizens can only file a claim in a public nuisance case if they have unique injuries, the complainant neednt have a property interest in any property affected by defendant's conduct

Defendant's conduct may constitute a private nuisance when it interferes with another's current possessory or beneficial interest in the use or quiet enjoyment of land

Nuisance Private Nuisance

The complainant in private nuisance neednt own the property; he need only be a lawful occupant or the holder of one or more other use rights

Nuisance v. Trespass Part 1

A claim in trespass ordinarily seeks damages for a physical intrusion onto property. Where the intrusion is permanent, or if it is serious or persistent, the suit sounds in trespass

Nuisance v. Trespass Part 2

In contrast, when the defendant's conduct creates conditions of noise, lights, odor or vibration that interfere with the plaintiff's quiet enjoyment of the property, but do not interrupt the plaintiff's possessory interests, the claim is more properly brought in private nuisance

Nuisance and Trespass Continuing

A nuisance or trespass is continuing (or temporary) if it could be discontinued or abated at any time, such as an industrial activity that causes airborne pollution
A permanent nuisance or trespass is an interference or an intrusion that has no ready means of abatement. For a permanent condition, a single statute of limitations will apply, while for a continuing condition, the statute of limitations is tolled anew each day the activity continues

Nuisance and Trespass Permanent

Pecuinary Loss

Loss of money or the loss of something of monetary value

Prenatal Harms 3 Types

1. Wrongful Life 2. Wrongful Birth 3. Wrongful Conception

Prima Facie Case

An action where the plaintiff introduces sufficient evidence to submit the issue to the judge or jury for determination

Privity of Contract

A relationship between the parties to a contract that is required in order to bring an action for breach

Property Damages (Tort Damages)

Damages for permanent deprivation or destruction of property are generally measured by the market value of the property at the time of the tort. If real or personal property is damaged but not destroyed, courts generally compensate the victim for the diminished market value of the property but sometimes award the cost of repairs instead of diminished value

Public Figure

Any person who is generally known in the community

Punitive Damages (Tort Damages)

Punitive damages allow plaintiffs to collect additional damages in order to punish a defendant who has acted with malice. Here, malice means ill will, hatred, or reckless disregard for plaintiffs rights. It is important to note that, generally, punitive damages must bear some reasonable relationship to actual damages

Qualified Immunity

An affirmative defense relieving officials from civil liability for the performance of activities within their discretion so long as such conduct is not in violation of an individual's rights pursuant to law as determined by a reasonable person standard
The standard of case exercised by one who possesses the intelligence, education, knowledge, attention, and judgment required by society of its members when governing behavior; the standard applies to a person's judgment when determining breach of a duty under the theory of negligence

Reasonable Person Standard

Respondeat Superior

Rule that the principal is responsible for tortious acts committed by its agents in the scope of their agency or authority

Self Defense Rule (Intentional Torts Defenses)

Reasonable force can be used where one reasonably believes that such force is necessary to protect oneself from an imminent attack and unprivileged attack

Self Defense Reasonable Force Element 1 (Intentional Torts Defenses)

A defendant otherwise acting in selfdefense may only use the degree of force reasonably necessary to avoid the harm threatened by plaintiff.

Self Defense Imminent Attach Element 2 (Intentional Torts Defenses)

Defendant cannot successfully assert self-defense when the purported threat represented by plaintiffs conduct is not about to happen (Im going to come back here tomorrow and kill you) or has been averted or ended

Self Defense Unprivileged Attach Element 3 (Intentional Torts Defenses)

Where plaintiffs conduct (which purportedly threatens an imminent attack) is privileged (e.g., police officer making a lawful arrest of defendant), defendant may not invoke self-defense and will be liable for any tortious acts committed toward plaintiff

Self Defense Obligation to Retreat (Traditional & Majority View) (Intentional Torts Defenses)

The traditional and still majority common law position does not require retreat, assuming the threatened individual has the legal right to be present or to proceed

Self Defense Obligation to Retreat (Minority View) (Intentional Torts Defenses)

The minority position, endorsed by the Restatement 70, requires retreat where serious bodily injury or death would otherwise be required in self-defense. The minority position would not, however, require retreat from the victim's dwelling
Even where there is actually no harm threatened against defendant, she may successfully assert self-defense if a reasonable person in the same circumstances would have believed that she was under attack. Thus, so long as defendant subjectively (i.e., honestly and in good faith) believes that a sufficient threat exists to justify defensive force, and there is an objective basis for that belief (a reasonable person would believe so under the circumstances), self-defense is available

Self Defense Self-Defense Available on Reasonable Apprehension (Misc) (Intentional Torts Defenses)

Self Defense No Intentional Tort Liability for Inadvertent Injuries to Third Parties (Misc) (Intentional Torts Defenses)

Where a defendant otherwise properly acts in self-defense, she is not liable for an intentional tort if she thereby inadvertently inflicts injuries on innocent third persons

Strict Liability/Liability Without Fault (Strict Liability)

The defendant will be responsible in damages, without regard to due care or fault

Strict Liability Rule (3 major contexts) (Strict Liability)

1. Keeping wild or other dangerous animals 2. Carrying out abnormally dangerous (or ultrahazardous) activities 3. Strict liability for defective products

Strict Liability Animals (Livestock) (Strict Liability)

The original common law rule provided for owner liability without fault for damage done by trespassing livestock. Restatement 504 imposes strict liability for the possessor of trespassing livestock unless (1) the harm is not a foreseeable one; (2) the trespass by animals being driven (herded) along the highway is confined to abutting land; or (3) state common law or statute requires the complaining landowner to have erected a fence Keepers of dogs, cats, horses or other domestic animals are liable for injury caused by the animal only where the possessor knew or should have known of the animal's vicious disposition. Courts have rejected the maxim of every dog gets one bite. In many jurisdictions a dog bite statute creates the exclusive remedy for dog bite victims

Strict Liability Animals (Domestic Animals) (Strict Liability)

Strict Liability Animals (Wild Animals) (Strict Liability)

Many jurisdictions have followed the rule of strict liability for owners or keepers of wild animals that cause harm even though the possessor has exercised the utmost care

Some courts have held that the plaintiff's mere contributory negligence does not bar the claim.

Strict Liability Animals (Defenses) (Strict Liability)

In comparative negligence jurisdictions, however, fault principles may be used to reduce the amount of the plaintiff's award. The plaintiff's assumption of the risk is a defense

Strict Liability Animals & Trespassers (Defenses) (Strict Liability) Part 1

If plaintiff is an unknown trespasser, most jurisdictions do not impose any liability (strict or otherwise) for injuries inflicted by defendants animals while plaintiff is on defendants land, even as to animals of known dangerous propensities

Strict Liability Animals & Trespassers (Defenses) (Strict Liability) Part 2

If plaintiff is any other type of trespasser (known, frequent, or child), defendant is liable only for negligence. Plaintiff must establish that defendant failed to exercise due care to warn of or protect from his animal

Strict Liability Abnormally Dangerous Activities Rule (Strict Liability)

An activity is considered abnormally dangerous if (1) it creates a risk of serious injury as to plaintiff, his land or his chattels, (2) this risk cannot be eliminated by the exercise of due care, and (3) the activity is not usually conducted in that area

Strict Liability Abnormally Dangerous Activities Defense for the Defendant (Defenses) (Strict Liability)

Only the plaintiff's assumption of the risk is a defense to a strict liability action based on an abnormally dangerous activity; the fact that the plaintiff may have failed to use reasonable care for her own protection is irrelevant

Strict Liability Design Defect (Strict Products Liability)

Design defect would be a product that leaves the manufacturers facility as intended by design, but the design is defective by one of three tests, tested at the time of the manufacture (state of the art at the time of manufacture):

Strict Liability 3 Tests Design Defect (Strict Products Liability)

1) The consumer expectation test, which asks is product more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner? 2) The risk-utility balancing test, which asks does the products risk of harm outweigh its utility? 3) The feasible alternative test, which asks could the foreseeable risks of harm from the product have been reduced or avoided by the adoption of a reasonable alternative design?

Defective Design

A product that is manufactured in accordance with a particular design; however, such design is inherently flawed so that it presents an unreasonable risk of injury

Defective Products

Products that contain a weakness or flaw in manufacture that is responsible for damages or injuries

Strict Liability (Strict Products Liability)

Liability for all injuries proximately caused by a party's conducting of certain inherently dangerous activities without regard to negligence or fault

Strict Liability 3 Types of Defective Products (Strict Products Liability)

1) Design defect, 2) Manufacturing defect, and 3) Failure to warn

Strict Liability Failure to Warn (Strict Products Liability)

A product is defective if it lacks an adequate warning about unobvious dangers of using it

Liable if:

Strict Liability Manufacturer or Seller Liability (Strict Products Liability)

1) the product was in fact in a defective condition, unreasonably dangerous for its intended use; 2) such defect existed when the product left defendants control; and 3) the defect was the proximate cause of the injury sustained

Strict Liability Manufacturing Defect (Strict Products Liability)

A manufacturing defect occurs if a product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product, for example a car manufactured without brakes

Strict Liability Claim Proof 4 elements (Strict Products Liability)

1. 2. 3. 4.

Proper parties Defective product Causation, damages, and Absence of defenses

Strict Liability Claim Proper Parties (Strict Products Liability)

Proper parties would include one who makes, distributes, or sells a defective product; and any foreseeable user of the defective product

Strict Liability v. Negligence (Strict Products Liability)

In strict liability, defendant is liable for injuring plaintiff whether defendant exercised due care or not. As to certain activities, the policy of the law is to impose liability regardless of how carefully defendant conducted himself

Products Liability Rule (Strict Products Liability)

Strict products liability is invoked when a defective product for which defendant is responsible injures an appropriate plaintiff

Products Liability 4 Principal Theories (Strict Products Liability)

(1) negligence; (2) breach of one or more warranties; (3) strict products liability; and (4) misrepresentation A product seller is liable if he acts or fails to act in such a way as to create an unreasonable risk of harm loss to a foreseeable user using the or affected by the product in a foreseeable manner
Most courts use the formulation of Judge Learned Hand, or a comparable risk-benefit model The Hand formulation states that an actor is in breach if the burden of taking measures to avoid the harm would be less than the multiple of the likelihood that the harm will occur times the magnitude of the harm should it occur, or B<PL

Products Liability Negligence (Strict Products Liability)

Products Liability Negligence Judge Learned Hand (Strict Products Liability)

Products Liability Breach of Warranty 3 Ways (Strict Products Liability)

A claim that arises under principles of contract in one of three ways 1. Express Warranty 2. Implied Warranty of Merchantability 3. Implied Warranty of Fitness for a Particular Purpose

Products Liability Express Warranty Breach of Warranty (Strict Products Liability)

Is made when the seller makes a material representation, such as regards a product's composition, durability, performance, or safety. The seller's representation may be puffing and therefore not material, if it pertains merely to subjective matters such as aesthetics

Products Liability Implied Warranty of Merchantability Breach of Warranty (Strict Products Liability)

Provides that any seller impliedly warrants that the product sold is fit for its ordinary purposes, and conveys with the sale of the product irrespective of the seller's statements

Products Liability Implied Warranty of Fitness for a Particular Purpose Breach of Warranty (Strict Products Liability)

Contemplates the buyer's explicit or implicit request that a seller having specialized knowledge recommend a product suitable for the buyer's specialized goal

Products Liability Disclaimer Implied Warranty of Merchantability Breach of Warranty (Strict Products Liability)

The implied warranty of merchantability may be disclaimed if the disclaimer mentions merchantability and is conspicuous. A 2-315 implied warranty may be disclaimed where the disclaiming language is by a writing and conspicuous. Implied warranties may be excluded with language such as as is or with all faults

Products Liability Strict Liability (Strict Products Liability)

Strict liability in tort for anyone who sells a product in a defective condition unreasonably dangerous to the user or consumer or his property. The defendant must be a seller of such products in the ordinary course, although in many jurisdictions the strict liability cause of action to other businesses, such as lessors

Products Liability Basis for Liability Negligence (Strict Products Liability)

The maker of a product that is to be used by others and that is capable of harm if not carefully made is under a duty to make it with care commensurate with the risk of harm. The manufacturer of a product is presumed to be an expert in his field
Liability in negligence is limited to settings in which the product was put to a reasonably foreseeable use, including a reasonably foreseeable misuse. The plaintiff must also be a person who might reasonably be foreseen to use, consume or be affected by the product. Foreseeability is limited to what was known or knowable at the time of manufacture

Products Liability Liability as Limited by Foreseeability Negligence (Strict Products Liability)

Products Liability The Duty of Non-Manufacturing Sellers Negligence (Strict Products Liability)

Restatement 401 provides that the non-manufacturing seller has a duty to warn of hazards of which he knows or has reason to know, and of which the buyer is unaware

Products Liability Proof of Negligence Negligence (Strict Products Liability)

Proof of defect does not, without more, prove negligence. The plaintiff must show that the seller's conduct fell below that expected of a reasonable man in similar circumstances
The occurrence of the accident itself does not make out plaintiff's prima facie case in negligence. However, circumstantial proof, such as recent purchase and ordinary use, that tends to negate the possibility of alternative causes, may advance the plaintiff's proof of both defects and negligence

Products Liability The Accident Itself Negligence (Strict Products Liability)

Products Liability Res Ipsa Loquitor Negligence (Strict Products Liability)

Upon the showing that the product was one over which the defendant had complete control, and that the accident resulting in injury was of such a nature that it ordinarily would not occur in the absence of negligence, the doctrine of res ipsa loquitur permits the plaintiff to shift to the defendant the burden of proof on the issue of negligence

Products Liability Express Warranties Negligence (Strict Products Liability)

Express warranties are seller representations to the buyer of the quality, performance, construction, or durability of a product. Such warranties may be oral, written, or even pictorial

Products Liability Implied Warranties Negligence (Strict Products Liability)

The implied warranty of merchantability warrants that are fit for their intended purpose Under UCC 2-314, it is necessary that the seller be a merchant of such products in the ordinary course of trade

Products Liability The Duty of the Non-Manufacturing Seller Negligence (Strict Products Liability) Part 1

The general rule is that the retailer or distributor has a duty to warn only of risks that are known or readily ascertainable

Products Liability The Duty of the Non-Manufacturing Seller Negligence (Strict Products Liability) Part 2

Commercial lessors have been found to be within the class of businesses owing a duty to warn of dangerous conditions in the use of their products, by reason of their regular dealing with the product, and superior position to analyze potential hazards. The repairer or servicer of a product will not generally be found responsible for failure to warn of risks associated with the use of a product

Products Liability - Strict Products Liability for Misrepresentation (Strict Products Liability)

One engaged in the business of selling chattels who by advertising, labels, or otherwise, makes to the public a misrepresentation of material fact concerning the character or quality of a chattel sold by him is subject to liability for physical harm to a consumer of the chattel caused by justifiable reliance upon the misrepresentation, even though (a) it is not made fraudulently or negligently, and (b) the consumer has not bought the chattel from or entered into any contractual relation with the seller

Products Liability (Strict Products Liability)

The legal liability of manufacturers and sellers for damages and injuries suffered by buyers, users, and even bystanders because of defects in goods purchased

Tort Considerations

1. What are the plaintiff's injuries? 2. Who are the responsible parties? 3. Who is the plaintiff? 4. What legal theories can the plaintiff pursue?

Torts (3 areas to cover)

1. Intentional Torts 2. Negligence 3. Strict Liability

Torts (5 common elements)

1. An act 2. Intent 3. Causation 4. Harm 5. Without privilege


Unlawful interference with, or damage to, the real or personal property of another

Trespass to Chattels (Rule) (Intentional Torts)

An intentional act by defendant which causes an interference with plaintiffs personalty

Trespass to Chattels- Intentional Act Element 1 (Intentional Torts)

This element is satisfied when defendant intentionally performs the physical act which interferes with plaintiffs chattel. Defendant is liable even though he did not intend or recognize the legal significance of his act. Mistake is not a defense to trespass to chattels

Trespass to Chattels- Interference Element 2 (Intentional Torts)

Interference with plaintiffs chattel is actionable if it constitutes dispossession or intermeddling

Trespass to ChattelsInterference(Dispossession) Sub-element 2 (Intentional Torts)

Dispossession is a direct interference with plaintiffs possession, such as where defendant temporarily takes plaintiffs chattel or wrongfully refuses to return it

Trespass to ChattelsInterference(Intermeddling) Sub-lement 2 (Intentional Torts)

Intermeddling is an interference with a chattel that does not directly affect the plaintiffs possession. Examples: smearing mud on plaintiffs truck, or kicking plaintiffs dog

Trespass to Chattels Chattels def. (Misc) (Intentional Torts)

Chattel means tangible personal property or intangible property which has a physical representation, such as a promissory note, or documents in which title to a chattel are merged, such as warehouse receipts or bills of lading

Trespass to Chattels Damages Must be Proven (Misc) (Intentional Torts)

Unlike other intentional torts, proof of actual damages is an element of the cause of action for trespass to chattels. Actual damages would include the value of loss of use (e.g., rental value) of the chattel during a dispossession, or the cost to remedy an intermeddling

Trespass to Chattels Plaintiff must be in Possession (Misc) (Intentional Torts)

In order to bring a trespass to chattel action, the plaintiff must have been in actual possession or have had the right to immediate possession of the chattel

Trespass to Land (Rule) (Intentional Torts)

Trespass to land is an intentional act which causes a physical invasion onto another persons land without permission from the rightful possessor of that land

Trespass to Land - Intentional Act Element 1 (Intentional Torts)

Defendant must act with intent to cause a physical invasion of plaintiffs land. Intentional entry onto land is a trespass even though defendant does not realize he has crossed a boundary line, or has a good faith belief that his entry is lawful. Mistake is not a defense as to a trespass action This element is satisfied if defendant enters or causes a third person or object to enter onto plaintiffs land, enters onto plaintiffs land lawfully but then remains when under a legal duty to leave, or fails to remove an object from plaintiffs land when under a legal duty to do so
Some events which might logically be considered intrusions onto land, such as airborne pesticides which float onto plaintiffs land from defendants crop dusting of adjacent property, were traditionally addressed by tort law under nuisance or strict liability principles. Some jurisdictions have begun treating such invasions as trespasses to land if actual harm was caused thereby

Trespass to Land Physical Invasion Element 2 (Intentional Torts)

Trespass to Land Intrusions Not Involving a Discernible Physical Object (Misc) (Intentional Torts)

Trespass to Land Air and SubSurface Areas (Misc) (Intentional Torts)

Plaintiffs land includes the area both above and beneath the surface. Traditionally, plaintiffs land was thought to include the air space and the subsurface to a level that plaintiff did or could make beneficial use of


A result that was not likely to occur from a particular act or failure to act

Is one that unexpectedly and unpredictably results from the proximate cause

Unforeseeable Cause

The degree of injury sustained is unanticipated or far removed from the negligent or intentional conduct that took place.

Unforeseeable Extent of Injury (Proximate Cause)

The unforeseeable EXTENT of injury is not a fact to consider for proximate cause because the thin skull or eggshell skull rule applies to this one you take your plaintiffs as you find them

Unforeseeable Intervening Event

An intervening act is an event that occurs after a tortfeasor's initial act of negligence and causes injury/harm to a victim

Unforeseeable Plaintiff (Majority View)

If the defendants conduct is not negligent towards plaintiff, then it is not negligent all

Unforeseeable Plaintiff (Minority View)

If the defendants conduct is negligent towards any class of people, then that conduct is negligent towards anyone who is actually injured

Vicarious Liability

Vicarious liability describes liability imposed on a defendant because of its relationship with the actual wrongdoer who directly caused injury to plaintiff

Vicarious Liability Respondeat Superior

An employer is vicariously liable for the negligence of his employees committed within the scope of the employment relationship.

Vicarious Liability Independent Contractors

A defendant is not liable for torts committed by someone he has engaged as an independent contractor. This is because defendant has no right to control the activity of the contractor

Vicarious Liability Joint Enterprise (Partners and Joint Venturers)

Partners and joint venturers are vicariously liable for each others torts if those torts were committed in the course and scope of the partnership or joint venture

Vicarious Liability Auto Owner - Driver

Traditionally, the owner of an auto had no vicarious liability for torts committed by another person driving that auto with the owners permission Modernly, many jurisdictions impose vicarious liability via statute where the person driving the care is a member of the owners family or household (the family car doctrine)

Vicarious Liability Parent-Child

A parent is normally not vicariously liable for a tort committed by her child. A few courts which have imposed vicarious liability on a parent for the tort of a child characterized the relationship as principal-agent (akin to employeremployee), where the child was running an errand for the parent
Historically, a tavern keeper was not vicariously liable for injuries inflicted by an intoxicated patron, whether the person injured was a third person or was the intoxicated patron himself. Some states statutorily impose vicarious liability on tavern keepers as to injuries to third persons caused by intoxicated patrons

Vicarious Liability Tavern Keepers

Willful and Wanton Misconduct

Unlawful intentional or reckless conduct without regard to the consequences

Workers Compensation

Fixed awards provided to employees for job-related injuries

Workers Compensation Act

The statutory right of an employee to claim fixed benefits (primarily loss of earnings and medical expenses) from the employer for injury or disease arising out of and in the course of employment. The compensation scheduled under the Act is an exclusive remedy, barring any common-law remedy which the employee may have had

Wrongful Birth (Prenatal Harms)

In wrongful birth actions, the plaintiffs are suing because the defendants' negligence deprived them of their ability to make an informed decision about whether to procreate, or whether to carry a potentially impaired child to term. In many instances, the plaintiff must show that but for the defendant's negligent failure to diagnose the condition giving rise to the birth defect, the plaintiff would have learned of the potential danger and would have elected to terminate the pregnancy

Wrongful Conception (Prenatal Harms)

The parents' action for the negligently caused birth of a healthy child Wrongful conception (where allowed) permits recovery for the birth of an unwanted HEALTHY child

Wrongful Death

An action brought by the beneficiaries of a deceased person, claiming that the deceased's death was the result of wrongful conduct by the defendant

Wrongful Life (Prenatal Harms)

A wrongful life action is the action of the infant born in an impaired condition, claiming, in essence, that being born was the injury. The great majority of jurisdictions have refused to recognize such a claim

Wrongful Death Act

Provides that any recovery shall be distributed to the widow and next of kin in proportion that the percentage of dependency of each such person upon the deceased bears to the sum of the percentages of dependency of all such persons.

Zone of Danger

For purposes of tort liability, the requirement that the plaintiff be within the area of risk of injury from the defendant's conduct in order to recover for negligence
Courts have used the near-impact rule to compensate a bystander for the emotional trauma of witnessing a serious injury to a close relative. Under the zone-of-danger rule, the plaintiff can recover for emotional harm suffered from witnessing negligently inflicted harm causing death or serious injury to another (generally a close relative) when she is in a position to fear for her own safety

Zone of Danger - Relatives