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I. Development of Liability Based Upon Fault

II. 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

(E) Insanity(1) General rule ==

(2) Policy

(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(1) Contact to gain attention ==

(D) Causation

(E) Harmful or Offensive Touching(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

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(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

(B) Obstruction or Detention(1) No reasonable exit

(2) Restriction

(3) Example: restraining plaintiff in nursing home ==

(C) Knowledge of Obstruction or Detention(1) Submission of will

(2) Awareness required ==

(D) Means of Obstruction or Detention(1) Use of false pretenses to obtain plaintiffs consent ==

(2) False arrest ==

(3) Refusal to permit egress ==

(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(1) Early cases

(2) Expansion of 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

(F) Acts directed against third parties

(1) Family member ==(2) Others

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

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(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 FaithAn individual may be subject to liability for conversion although he was not subjectively at fault

(1) Good faith mistakeBailee returning chattel to wrong owner liable for conversion must interplead

claimants or deposit goods in court

(2) Innocent purchaserCannot 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

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(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 noDamage 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 damagesMay be allowed when the conversion was malicious but not when it was done

innocently.

(E) What May Be ConvertedOriginally only tangible goods could be converted. Modern trend includes rights and intangible

intellectual properties.(F) Who May Maintain the ActionAnyone in possession at time of conversion: finder, bailee, sheriff, another converter,

those with rights to future possession.

(G) RemediesReplevin, Detinue, or Claim and DeliveryP may obtain return of the chattel and damages for

detention

III. Privileges (Defenses = DARN COPS)

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

consent.

(B) Manifestation of ConsentMay 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) FraudExample: 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) DuressConsent obtained by force or threats against P or family will be ineffective.

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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. Negligence1. History and DefinitionArose 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 unreasonableharm.

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 ProofP has burden of proof by preponderance of evidence

(B)Act or OmissionAct 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 injurynot

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.

(B) Justified RiskUtility 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 greatIf 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.

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4. The Standard of CareThe 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 skillsAll 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 discoverDuty to find out what not known (example: where lightning likely in country)

(c) Common factsNeglect knowing at peril (example: fire burns)

(d) ExpertsReasonable person can rely on experts

(3) CustomCommunity 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) EmergencyNot 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) CaveatEmergency doctrine limiteddoes not apply when D creates emergency or

should have anticipated(5) Physical attributesDisabled person compared to reasonable prudent person w/same disability

(a) Blindness ==

(6) ChildrenAt 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 capacityPerson w/mental incapacity held to reasonable standard of sane person

(a) Insanity ==

Some forms may be defense. Sudden unforeseeable delusions w/no history maybe defense. However, when Ds insanity prevents P from understanding danger

and taking action, P cannot claim contributory negligence.

(b) Decreased capacityCan be considered in defense of contributory negligence.

(8) Voluntary intoxicationNo allowance for voluntary intoxication. Involuntary may be different. Voluntary

intoxication may give D contributory negligence defense.

(B) The ProfessionalDoctor or other professional required to have same skill and learning as average member of the

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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 befollowed.

(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 statutesFew states have them now but most states only allow guest passengers to sue for gross

negligence.

5. Rules of Law(A) IntroductionStandards 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 StatuteMay be civil or criminal. If criminal statute w/no civil remedy may still recover through negligence. P mustshow in class protected and injury was type to be protected from. Majority: violation = negligence per se. In

CA = rebuttable presumption of negligence Minoritymerely 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 ignitiondissention: not proximatecause).

(4) Type of risk coveredThere 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 PlaintiffCan vary dramatically from one jurisdiction to another

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(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) ElementsP 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 detectionP need only show

preponderance of affirmative evidence (51%)

(4) Constructive notice ==Grocery peel s&fconstructive 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 ofharm (grocery grapes s&f)

(C) Res Ipsa LoquiturCircumstantial 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 3rdparty 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 defendantMakes D explain away negligencea reasonable prudent person must say at least 51%

point to D

(4) Explanation of all possibilitiesP 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 testimonySometimes expert testimony necessary, but problems when experts disagree

(6) Control of instrumentality of injuryIn most cases D must be in control of instrumentality but not a necessity. Central issue is

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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 defendantsMay be more than one D with neither in exclusive control, e.g. tenant and

landlord.

(c) Common carrierSpecial duty of care owed to passenger Ps

(d) Doctors ==Special responsibilities and shared responsibility w/staff

(e) Products liabilityManufacturer and retailer may both be liable

(f) Exceptions to common carrier rule ==Unexplained cause of wreck may not require finding of negligencehere not

(7) Three views of RIL

(a) Permissible InferenceMajority viewstrength of inference varies with circumstances

(b) Presumption of negligenceIf not rebutted by D, court must fine negligence as a matter of law

(c) Shifting of burden of proofShifts 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 Fact1. Sine Qua Non

A. In GeneralIf 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 CausationPossibility 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 testimonyD need notprove another causemay 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 witnessmust show cause more likely than not

3. Concurrent CausesA. Generally

Strict sine qua non fails if either insufficient alone or each sufficient aloneconduct the considered

a cause if substantial factor

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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 HarmA. Alternative Liability

The Landmark Case == Summers v Ticetwo hunters > shifts burden of causation to defendants

both must be negligent

B. Apportioning DamagesActual tortfeasor unknown

(1) Enterprise Liability ==Several manufacturers jointly control riskif 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 shareP

must join sufficient manufacturers to prove substantial share of market represented

VI. Proximate or Legal Cause1. Introduction

A. Limit on LiabilityLegal concept used to determine extent of liability after actual cause provedlimits but for

B. TerminologyTerm deceptivelegal cause no best eithertrue test is how far public policy will extend liability

C. ForeseeabilityMust be reasonable foreseeability

D. Direct v Indirect ResultsIndirect = intervening forces between act and harm > difficult causation problems

2. Unforeseeable Consequences

A. ForeseeabilityHarm caused to P may be foreseeable or unforeseeableCardozo view (majority) v Andrews

Harm may be different than foreseen due to unknown preexisting condition or subsequent

circumstances

(1) Fire CasesDifficult causation problemscase 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 happenedhas been repudiated

(4) Actual results MUST be foreseeable ==Wagon Mound I: wharffire from ships oil on waterunforeseeablePs welders may have

sparked fire > contrib = repudiation ofPolemisneed limitation on liability; reasonable

foreseeabilty is better view

(5) Balancing TestWagon Mound II: same facts as above but said court in sister case erred in determining what

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a reasonable person would foreseeD liable; should have foreseen danger

(6) Foreseeabilty of the PForeseeabilty 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

disagreeP might reasonably chase tire > REVERSED

3. Intervening CausesA. 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 ActsNegligence may produce situation where liability may depend on negligence or intention of

intervenor

Highly dangerous situation ==

Cigar match lit spilled gas

D. Normal Intervening CausesUnforeseeable but normal incidents of risk

(1) DiseaseExample: P gets ill after reduced resistance following injury caused by D

(2) SuicideNot 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 PolicyA. 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 ingest5. Shifting Responsibility

Generally once D creates peril for P, Ds liability not relieved by failure of 3rd

person to prevent harm but

exceptions

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VII. Joint Tortfeasors1. Liability and Joinder of Defendants

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

B. Action in Concert ==

Car racers both liable to PC. Comp Neg and Joint LiabilityDivided 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 Loss4. 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) Implied2. 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

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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 LiabilityNegligence

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. RemediesXVIII. Privacy

XIX. Civil Rights

XX. Misuse of Legal Procedure

XXI. Misrepresentation

1. Introduction2. Concealment and Nondisclosure

3. Basis of Liability

(A) To the Recipient

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(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 To rt Law

1. Employment Injuries

2. Automobile Accident Injuries

3. Other No-Fault Compensation Systems

4. The Future