I. II.

Development of Liability Based Upon Fault Intentional Interference with Person or Property (ABC FITT) 1. Intent
(A) Introduction
(1) Need not be malicious (2) Objective standard (3) Intentional acts by children

(B) Substantial Certainty == (C) Distinguishing Intent from Negligence == (D) Mistake
(1) Good faith mistake == (2) Unavoidable mistake (3) Mistaken appropriation of property (1) General rule == (2) Policy

(E) Insanity

(F) Transferred Intent

(1) General Rule (2) Example: intentionally throwing stick ==

2. Battery
(A) Prima Facie Case
(1) Act (2) Intent (3) Harmful or offensive touching (4) Causation

(B) The Act (C) Defendants Intent

(D) Causation (E) Harmful or Offensive Touching

(1) Contact to gain attention ==

(1) Nature of the contact (2) Physical harm unnecessary (3) Harmful because of condition of plaintiff (4) Plaintiffs knowledge (5) Plaintiffs person: body and things closely attached thereto == (6) Relation to assault

(F) Consent or privilege

3. Assault
(A) Prima Facie Case
(1) Act by the defendant (2) Intent of the defendant (3) Fear of apprehension of the plaintiff; and (4) Causal relationship

(B) Actual Physical Invasion of the Plaintiff Unnecessary (C) Present Ability to Cause Damage Unnecessary == (D) Words Alone (E) Intent of Defendant (F) Causal Relationship (G) Consent or Privilege

(H) Damages

4. False Imprisonment
(A) Prima Facie Case
(1) Act by the Defendant (2) Obstruction or detention of the plaintiff (3) Intent; and (4) Causal relationship (1) No reasonable exit (2) Restriction (3) Example: restraining plaintiff in nursing home ==

(B) Obstruction or Detention

(C) Knowledge of Obstruction or Detention (D) Means of Obstruction or Detention

(1) Use of false pretenses to obtain plaintiffs consent == (2) False arrest == (3) Refusal to permit egress == (1) Submission of will (2) Awareness required ==

(E) Escape (F) Intent (G) Causal Relationship (H) Consent or Privilege (I) Damages

5. Intentional Infliction of Emotional Distress

(A) Introduction
(1) Severe words or acts (2) No physical injury manifestation required (3) Differs from NIEDD in more culpable state of mind

(B) Traditional Objections to Emotional Distress as a Basis of Tort Liability (C) Extortion == (D) Insults and Abusive Language == (E) Severity of Conduct and Injury Caused
(1) Distress must be severe == (2) Soliciting intercourse (3) Persistent and intolerable conduct (4) Practical joke (5) Known vulnerability (1) Family member == (2) Others (1) Early cases (2) Expansion of liability

(F) Acts directed against third parties

6. Trespass to Land
(A) Prima Facie Case
(1) Act by D (2) Invasion of land in possession of P (3) Intent of the D; and (4) Causal relationship

(B) Possession

(C) Intent and Damages

(1) Common Law (2) Present authority (3) Subjective intent to violate plaintiffs rights unnecessary (4) Damages

(D) Invasion by Gas and Particulates == (E) Above and Below the Surface
(1) Above the surface Shooting Airplanes Actual use Zone Nuisance Privileged trespass (2) Below the surface (3) Physical entry required Persons and things Agents Continuing trespass Failure to remove object== Liability

7. Trespass to Chattels
(A) Introduction (B) Harmless Intermeddling == (C) Intentional Intermeddling (D) Trespass must be intentional (E) Actual Damages Required (F) Possessors use of reasonable force (G) Modern Trend (H) Unsolicited E-mail

8. Conversion
(A) Nature of the Tort
(1) Prima Facie Case (a) Intentional (b) Wrongful acquiring, transferring, using, or withholding of (c) The personal property of (d) Another (2) More than Intermeddling Required (a) Restatement, Second, of Torts 222A (b) Intermeddling short of conversion ==

(B) Effect of Good Faith

An individual may be subject to liability for conversion although he was not subjectively at fault (1) Good faith mistake Bailee returning chattel to wrong owner liable for conversion must interplead claimants or deposit goods in court (2) Innocent purchaser Cannot obtain title from a thief so liable for conversion but true owners right of rescission for goods fraudulently obtained cut off by bona fide purchase

(C) Necessity of Demand; Return of Chattel

(1) Demand Some states rule that innocent possessor not liable if return on demand. Most states follow Restatement, Second, of Torts 229 where liable for two Separate torts upon refusal to return on demand. (2) Return Does not bar action for conversion but if chattel but may mitigate. If no Damage may be nominal damages. In innocent cases court may require owner to take back undamaged goods and credit D with value.

(D) Damages

(1) Measure Damage measured as market value of property converted determined at the time and place of conversion. Also may recover for dispossession and Interest from time of suit. (2) Punitive damages May be allowed when the conversion was malicious but not when it was done innocently.

(E) What May Be Converted

Originally only tangible goods could be converted. Modern trend includes rights and intangible intellectual properties.

(F) Who May Maintain the Action

Anyone in possession at time of conversion: finder, bailee, sheriff, another converter, those with rights to future possession.

(G) Remedies
Replevin, Detinue, or Claim and Delivery P may obtain return of the chattel and damages for detention

III.

Privileges (Defenses = DARN COPS) 1. Consent

(A) Introduction
Burden on D. Acts as bar to action if proved. Issues whether consent in fact given or capacity to consent.

(B) Manifestation of Consent

May be express or implied. Implied may be in-fact as in act or conduct, or in-law as where circumstances create privilege (i.e., emergency surgery). (1) Conduct as consent == (2) Silence or inaction as consent (3) Participation in professional sports == (4) Failure to press a right as consent

(C) Vitiation of Consent

(1) Mistake of fact Example: body massage not really for treatment (2) Mistake of law Example: Submitting to invalid arrest warrant (3) Fraud Example: massage above bot note that fraud as to collateral matter does not vitiate consent (i.e., consent to sex for money that is counterfeit does not vitiate consent). (4) Duress Consent obtained by force or threats against P or family will be ineffective.

2. Self-Defense 3. Defense of Others 4. Defense of Property 5. Recovery of Property 6. Necessity 7. Authority of Law 8. Discipline 9. Justification IV. Negligence 1. History and Definition
Arose out of action on the case ~1825 and expanded throughout Industrial Revolution. Defined b Restatement, Second, of Torts 282 as any conduct, except conduct recklessly disregardful of the interest of others, which falls below the standard established by law for the protection of others from unreasonable harm.

2. Elements of Cause of Action

(i) Act or omission by the D; (ii) Duty owed by the D to exercise due care; (iii) Breach of duty b the D; (iv) Causal relationship between Ds conduct and harm (both actual and proximate); (v) Damages.

(A) Burden of Proof

P has burden of proof by preponderance of evidence

(B)Act or Omission
Act of D must be external manifestation of his will (volitional), but liable also for failure to act if under an affirmative duty to do so.

3. A Negligence Formula (Determination of Risk)

(A) Unreasonable Risk
(1) Possibility vs. probability == An act must be unreasonable and have a reasonable, foreseeable possibility of injury not just mere possibility. (2) Unusual conditions == A person is not liable for negligence if he takes all treasonable precautions against the foreseeable harms. (3) Foreseeability == A likelihood of injury short of probability may give rise to liability for negligence. Utility of a product must be balanced against the risk it presents. (1) Utility vs. harm == The operator or inherently dangerous equipment has a duty to take reasonable precautions to make the equipment safe. (2) Knowledge == Without specific notice maintenance of all country roads may be too large a burden even considering possible injuries. (3) Possible harm great If the possibility of harm is great there is a duty to guard against it even if the possibility of its occurring is small. (4) The Hand Formula == The balancing of burdens against risks to be avoided translates into a cost-benefit analysis.

(B) Justified Risk

4. The Standard of Care

The standard of care is generally that which the average reasonable prudent person would follow under the same or similar circumstances.

(A) The Reasonable Prudent Person

(1) Best judgment immaterial == A person may be liable even if he acted reasonably in his own judgment. (2) General knowledge and skills All persons deemed to possess certain minimum levels of knowledge and skills (a) actual knowledge not required == Actual knowledge of the danger not necessary to support finding for negligence (example: threadbare tires) (b) Duty to discover Duty to find out what not known (example: where lightning likely in country) (c) Common facts Neglect knowing at peril (example: fire burns) (d) Experts Reasonable person can rely on experts (3) Custom Community custom not necessarily reasonable. Many customs may be considered to be negligence. (a) Evidence of custom to prove reasonableness == Evidence of customary way of doing things safely that eliminates certain dangers may be used to show that one who did not comply fell below the standard of care (example: shower glass). (4) Emergency Not a different standard of care but condition added to circumstances taken into consideration (a) No liability for quick response == Person acting quickly w/o considering consequences in emergency may not be liable (example: cab driver jumped to escape robber). (b) Caveat Emergency doctrine limited does not apply when D creates emergency or should have anticipated (5) Physical attributes Disabled person compared to reasonable prudent person w/same disability (a) Blindness == (6) Children At common law 0-7 incapable, 7-14 rebuttably assumed incapable. Majority modern view is that standard based on children of like age, intelligence, and experience. (a) Inherently dangerous activity == Child involved in inherently dangerous or adult activity held to standard of care of ordinary adult (7) Mental capacity Person w/mental incapacity held to reasonable standard of sane person (a) Insanity == Some forms may be defense. Sudden unforeseeable delusions w/no history may be defense. However, when Ds insanity prevents P from understanding danger and taking action, P cannot claim contributory negligence. (b) Decreased capacity Can be considered in defense of contributory negligence. (8) Voluntary intoxication No allowance for voluntary intoxication. Involuntary may be different. Voluntary intoxication may give D contributory negligence defense.

(B) The Professional

Doctor or other professional required to have same skill and learning as average member of the

profession and to apply it. (1) Pilots standard of care == Standard is objective not subjective. (2) Attorneys error in judgment == OK if reasonable and diligence. (3) Locality rule for medical malpractice == The standards of care for a physician should not be based on a laypersons testimony of the standards of medical practice in the community. Standard of care is that of average physicians in similar communities. (4) National standard of care == In a large city with medical specialist a national standard of care will be followed. (5) Informed consent == Doctor has duty to fully inform but this duty is prospective only. (6) Breach of fiduciary duty == Failure to disclose personal interests unrelated to a patients health vitiate the patients consent and constitute a breach of fiduciary duty.

(C) Aggravated Negligence

(1) Degrees of car or negligence The care that a reasonable person must exercise will vary with the risk involved (e.g., explosives, common carrier). (2) Gross negligence Equivalent to a conscious and deliberate disregard of a high degree of probability (3) Guest statutes Few states have them now but most states only allow guest passengers to sue for gross negligence.

5. Rules of Law
(A) Introduction
Standards of care acknowledged by courts and given the effect of law.

(B) Effect of Circumstances ==

Usually negligence not to stop, look, and listen, but not always (Rail crossing).

6. Violation of Statute
May be civil or criminal. If criminal statute w/no civil remedy may still recover through negligence. P must show in class protected and injury was type to be protected from. Majority: violation = negligence per se. In CA = rebuttable presumption of negligence Minority merely evidence of negligence.

(A) Violation by the defendant

(1) Negligence == Statute requiring poison label violated = negligence (2) Class protected == When a statute imposes a duty a civil cause of action will lie for a person of the intended protected class. (3) Relation of injury to violation == Special circumstances surrounding the violation of a statute may make the violation the proximate cause of an injury even though the specific injury as not that clearly protected against by the statute (cab stolen when keys left in ignition dissention: not proximate cause). (4) Type of risk covered There must be a causal relationship between the breach of statute and the alleged wrong. Failure to report a crime == Witnesses to child molestation were not liable for negligence per se because statute required report if cause to believe childs physical or mental health adversely affected.

(B) Violation by Plaintiff

Can vary dramatically from one jurisdiction to another

(1) Per se approach == The unexcused violation of a safety statute by P is contributory negligence per se (headlights not on). (2) Rebuttable presumption approach == Violation of statute may merely create rebuttable presumption of negligence. Violation may be excused under certain facts and circumstances.

7. Proof of Negligence
(A) Elements
P must bear 3 burdens of proof: 1) pleading, 2) providing enough evidence to avoid directed verdict, and 3) persuading the trier of fact (1) D had actual or constructive knowledge of condition. (2) It posed unreasonable risk of harm, and (3) D did not exercise reasonable care to reduce or eliminate the risk, and (4) Ds failure was the proximate cause of the injuries.

(B) Court and Jury: Circumstantial Evidence

(1) Circumstantial evidence Proof of one fact or group of facts that gives rise to an inference by reasoning that another fact must be true (2) Insufficient evidence == Insufficient evidence that D dropped peel on rail platform, knew or should have known (3) Evidence sufficient to support inference of negligence == Blackened banana peel suggested presence long enough for detection P need only show preponderance of affirmative evidence (51%) (4) Constructive notice == Grocery peel s&f constructive notice requires proof condition existed sufficiently long time that D should have known about it (5) Sufficient evidence of dangerous condition unreasonable length of time == P may prove constructive notice w/circumstantial evidence (Kmart milk puddle) (6) Constructive notice arising from inherently dangerous activity == When method of business makes likely dangerous will arise, constructive notice not necessary (Woolworth pizza s&f) (7) No evidence of unreasonable risk == Mere display of produce for customer sampling does not constitute unreasonable risk of harm (grocery grapes s&f)

(C) Res Ipsa Loquitur

Circumstantial Evidence satisfies breach of duty element (1) Elements a) injury probably wouldnt have happened but for negligence, b) negligence w/i scope of duty owed by P, P nor 3rd party didnt contribute, d) instrumentality in control of D > inference of negligence by D. (2) Barrel rolling out of window == Only necessary for reasonable person to say negligence more likely than not (3) Burden on defendant Makes D explain away negligence a reasonable prudent person must say at least 51% point to D (4) Explanation of all possibilities P need not explain away all possibilities as long as shows accident ordinarily doesnt occur w/o negligence. Spare tire coming loose on highway== Classic case for res ipsa loquitor (5) Expert testimony Sometimes expert testimony necessary, but problems when experts disagree (6) Control of instrumentality of injury In most cases D must be in control of instrumentality but not a necessity. Central issue is

whether injury was one D owed duty to guard against. (a) Exclusive control == Chair thrown out of hotel window might have been guest. No exclusive control. Might have ordinarily happened despite Ds Care. (b) Multiple defendants May be more than one D with neither in exclusive control, e.g. tenant and landlord. (c) Common carrier Special duty of care owed to passenger Ps (d) Doctors == Special responsibilities and shared responsibility w/staff (e) Products liability Manufacturer and retailer may both be liable (f) Exceptions to common carrier rule == Unexplained cause of wreck may not require finding of negligence here not (7) Three views of RIL (a) Permissible Inference Majority view strength of inference varies with circumstances (b) Presumption of negligence If not rebutted by D, court must fine negligence as a matter of law (c) Shifting of burden of proof Shifts to D, but reverses to P if D successful (8) Additional Comments (a) Limited to inferences from evidence and pleadings (b) If all facts known nothing to infer (c) If no general allegations of negligence, may only be applied in support of allegations in pldgs

V.

Causation in Fact 1. Sine Qua Non

A. In General
If injury would not have happened but for act or omission of D then conduct of D is actual cause or cause in fact

B. Injury Even W/O Ds Negligence ==

Case: Train would have killed cars passenger even if it hadnt been speeding

2. Proof of Causation
Possibility that P negligent wont defeat claim == P fell down unlighted stairs Possibility of Ds negligence insufficient == D stumbled on step and rifle discharged, killed woman Coexistence not proof of causation == Cancer at sight of injury no proof of causal link between negligence and injury Expert testimony D need not prove another cause may produce other possible causes to negate proximate cause Decrease in chance of survival == Failure to timely diagnose cancer > damages limited to lost earnings and increased medical expenses Statistically significant relationship == Not enough even though expert witness must show cause more likely than not

3. Concurrent Causes
A. Generally
Strict sine qua non fails if either insufficient alone or each sufficient alone conduct the considered a cause if substantial factor

B. Combined Causes ==
Truck left in road w/lights off run into by inattentive driver injuring P: separate acts by Ds combining to cause one injury > joint and several liability to both

C. Substantial Factor ==
Damage from negligent fire + unknown: but for rule not applicable > substantial factor when concurrent causes each sufficient by itself

4. Problems in Determining which Party Caused the Harm

A. Alternative Liability
The Landmark Case == Summers v Tice two hunters > shifts burden of causation to defendants both must be negligent

B. Apportioning Damages
Actual tortfeasor unknown (1) Enterprise Liability == Several manufacturers jointly control risk if prove blasting cap manufactured by 1 of 6 then all liable

(2) Market Shares Liability ==

Cant identify individual tortfeasor 200 DES manufacturers liable according to market share P must join sufficient manufacturers to prove substantial share of market represented

VI. Proximate or Legal Cause 1. Introduction

A. Limit on Liability
Legal concept used to determine extent of liability after actual cause proved limits but for

B. Terminology
Term deceptive legal cause no best either true test is how far public policy will extend liability

C. Foreseeability
Must be reasonable foreseeability

D. Direct v Indirect Results

Indirect = intervening forces between act and harm > difficult causation problems

2. Unforeseeable Consequences
A. Foreseeability
Harm caused to P may be foreseeable or unforeseeable Cardozo view (majority) v Andrews Harm may be different than foreseen due to unknown preexisting condition or subsequent circumstances (1) Fire Cases Difficult causation problems case by case basis (a) One house rule == RR not liable beyond adjacent house: unforeseeable woodshed and wind (b) Broad liability == RR held liable for house 4 miles from fire origin (2) Psychological damage == Bartolone v Jeckovich (NY 1984): liable when minor accident > minimal physical injury > major psychological damage (3) Manner of injury unforeseeable == In Polemis (dropped plank sparked fire): D liable for unforeseeable if some damage foreseeable but not damage that happened has been repudiated (4) Actual results MUST be foreseeable == Wagon Mound I: wharf fire from ships oil on water unforeseeable Ps welders may have sparked fire > contrib = repudiation of Polemis need limitation on liability; reasonable foreseeabilty is better view (5) Balancing Test Wagon Mound II: same facts as above but said court in sister case erred in determining what

a reasonable person would foresee D liable; should have foreseen danger (6) Foreseeabilty of the P Foreseeabilty criteria XT to whom does D owe duty (a) Duty owed to the P == Palsgraf: may Ds negligence toward 3rd person > liability to P even though unforeseeable? NO Cardozo = majority; Andrews = minority (duty owed to world of Ps) (b) Unforeseeable extraordinary circumstances == Yun v Ford: P killed chasing spare tire across road > court may SUMJ if determines Ps own conduct supervening cause; dissent: reasonable person might disagree P might reasonably chase tire > REVERSED

3. Intervening Causes
A. Indirect Results of Ds Act
Intervening forces dont relieve liability unless unforeseeable and bring about unforeseeable results

B. Intervening Act w/i Risk of Negligent Act ==

Unforeseeable intervening act not superseding if result from same risk that renders D negligent: epileptic driver in work zone

C. Intervening Negligent or Intentional Acts

Negligence may produce situation where liability may depend on negligence or intention of intervenor Highly dangerous situation == Cigar match lit spilled gas

D. Normal Intervening Causes

Unforeseeable but normal incidents of risk (1) Disease Example: P gets ill after reduced resistance following injury caused by D (2) Suicide Not liable if P sane but may be if insane due to negligent injury by D Not superseding as a matter of law == Doctor injured by MVNG lost mind after brain injury, killed self (3) Rescue doctrine == Ds negligence caused peril; peril imminent; reasonable prudent person would see peril; P used reasonable care Applies in product liability cases but P must show proximate cause n.b. D need not 4c particular occurrence as long as should have 4c one of same gereral narure

4. Public Policy
A. Social Host Liable for Drun Guest ==
Kelly v Gwinell, landmark INJURY case 1984

B. Public Policy Limitations ==

DES case > must confine liability to mgbl limits = lim liability to those who ingest

5. Shifting Responsibility
Generally once D creates peril for P, Ds liability not relieved by failure of 3 rd person to prevent harm but exceptions

VII.

Joint Tortfeasors 1. Liability and Joinder of Defendants

A. Introduction
JTfzs either act in concert > injury or independently but > single indivisible injury

B. Action in Concert ==
Car racers both liable to P

C. Comp Neg and Joint Liability

Divided opinion on effect on J&S Does not eliminate J&S == Crane mfgr and employer J&S in wrongful death Does eliminate J&S == 2. Satisfaction and Release 3. Contribution and Indemnity 4. Apportionment of Damages VIII. Duty of Care 1. Privity of Contract 2. Failure to Act 3. Pure Economic Loss 4. Emotional Distress 5. Unborn Children IX. Owners and Occupiers of Land 1. Outside the Premises 2. On the Premises (A) Trespassers (B) Licensees (C)Invitees (D) Persons Outside the Established Categories (1) Children (2) Persons Privileged to Enter Irrespective of Landowner's Consent (E) Rejection or Merging of Categories 3. Lessor and Lessee X. Damages 1. Personal Injuries 2. Physical Harm to Property 3. Punitive Damages XI. Wrongful Death and Survival 1. Wrongful Death 2. Survival XII. Defenses 1. Plaintiffs Conduct (A) Contributory Negligence (B) Comparative Negligence (C) Assumption of Risk (1) Express (2) Implied 2. Statutes of Limitations and Repose 3. Immunities (A) Families (B) Charities (C) Employer Immunity (D) State and Local Governments (E) The United States (F) Public Officers

XIII. Vicarious Liability 1. Respondeat Superior 2. Independent Contractors 3. Joint Enterprise 4. Bailments 5. Imputed Contributory Negligence XIV. Strict Liability 1. Animals 2. Abnormally Dangerous Activities 3. Limitations on Strict Liability XV. Products Liability

Development of Theories of Liability

Negligence Warranty (1) Express Warranties (2) Implied Warranties (C) Strict Liability in Tort 2. Product Defectsl (A) Manufacturing Defect (B) Design Defect (C) Warnings Defect 3. Proof 4. Defenses (A) Plaintiff s Conduct (B) Preemption and Other Government Actions 5. Defendants Other than Principal Manufacturers/Harm Other than Personal Injury (A) Other Suppliers of Chattels (B) Services (C) Harm Other Than Personal Injury 6. Legislation and Products Liability XVI. Nuisance XVII. Defamation 1. Nature of a Defamatory Communication 2. Libel and Slander 3. Publication 4. Basis of Liability (A) Actual Malice, Burdens of Proof, and the Press (B) Private Plaintiffs (C) Speech of Private Concern (D) Falsity (E) Public Figures and Public Officials (F) Opinion 5. Privileges (A) Absolute Privilege (B) Conditional or Qualified Privilege 6. Remedies XVIII. Privacy XIX. Civil Rights XX. Misuse of Legal Procedure XXI. Misrepresentation 1. Introduction 2. Concealment and Nondisclosure 3. Basis of Liability (A) To the Recipient

(B) To-Third Persons 4. Reliance 5. Opinion 6. Law 7. Prediction and Intention 8. Damages XXII. Interference with Advantageous Relationships 1. Business Relations (A) Injurious Falsehood (B)Interference with Existing or Prospective Contractual Relations (C) Tortious Breach of Contract 2. Family Relations XXIII. Torts in the Age of Statutes 1. Implied Rights of Action and Statutory Duties 2. Express Rights of Action: Civil RICO 3. The Determination of Tort Law XXIV. Compensation Systems as Substitutes for Tort Law 1. Employment Injuries 2. Automobile Accident Injuries 3. Other No-Fault Compensation Systems 4. The Future