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TORTS

PROFESSOR LESLIE KENDRICK

UNIVERSITY OF VIRGINIA SCHOOL OF LAW

CHAPTER 1: INTENTIONAL TORTS INVOLVING PHYSICAL INJURY

A. Generally

1. Three Elements—to prove an intentional tort, the plaintiff must prove:

o _________________________;

o _________________________; and

o _____________________________.

2. Intent

o The actor acts with the ___________________ of causing the consequence; or

o The actor knows that the consequence is _________________________________________

to follow.

a. Children and ____________________________________________________ persons—can

be held liable for intentional torts if they act with the requisite intent

b. Transferred intent—when the intent to commit one tort satisfies the required intent for a

different tort; this applies when a person commits:

 A ___________________ intentional tort against the ___________________ person

that he intended to harm;

 The ___________________ intentional tort against a ___________________person; or

 A ___________________ intentional tort against a ___________________ person.

Example 1: Tom, Gatsby, and Nick are drinking mint juleps at a hotel. Tom

throws a punch at Gatsby, intending to hit him. If he hits him, that’s a battery.

Different tort/same person: Tom misses Gatsby, but he puts him in reasonable

apprehension of imminent harm. Under the doctrine of transferred intent, the

intent to commit a battery satisfies the intent requirement for assault.

Same tort/different person: If the punch misses Gatsby and hits Nick, Tom

commits battery against Nick.

Different tort/different person: Tom intends to punch Gatsby, misses Gatsby,

misses Nick, but puts Nick in reasonable apprehension of being hit. The intent

to commit battery against Gatsby will transfer to the intentional tort of assault

against Nick.

B. Battery

1. Definition

1) Defendant causes a ___________________ or _______________________ contact with

the person of another; and

2) Acts with the _____________ to cause that contact or the apprehension of that contact.

2. Causation—act must result in ___________________ of a harmful or offensive nature

3. Harmful or Offensive Contact

a. Harmful—causes an ___________________, pain, or illness

b. Offensive

 A person of ordinary sensibilities would find the contact offensive.

Example 2: Spitting on somebody; groping somebody

 Victim need not be ___________________ of the touching to be offensive.

Example 3: An operating room attendant inappropriately touches a patient

under anesthesia. This is a battery even though the patient is not aware of it

because it is objectively offensive.

 If the victim is ______________________________________, and the defendant knows

that about the victim, the defendant may still be liable

c. Contact—the contact can be direct, but need not be

Example 4: Setting a bucket above a door, such that ice water falls on a

person’s head when the door is opened. Pulling a chair out from under

someone who’s about to sit down, so that they fall on the ground.

d. With the Person of Another—includes anything ______________________ to the plaintiff’s

person

Example 5: Contact with the hat on your head, the book in your hand, the

bike you’re sitting on, the pet you have on a leash.

4. Intent

o ***What has to be intended is the ___________________, not the offense

Example 6: Tom intentionally shakes Myrtle by the shoulders. It doesn’t

matter whether he intended to cause offense; if he intended the contact and the

contact is objectively offensive, he’s liable for battery.

o The doctrine of transferred intent ___________________ to battery.

5. Damages

o No proof of actual harm is required; the plaintiff can recover _________________ damages.

o The plaintiff can also recover damages from physical harm flowing from the battery.

 “______________________-plaintiff” rule—a defendant is liable for all harm that flows

from a battery, even if it is much worse than the defendant expected it to be.

o Many states allow _________________________ damages if the defendant acted:

 Outrageously; or

 With ___________________.

6. Consent Defense—there is no battery if there is express or implied consent.

Example 7: Tom and Nick enter a boxing contest. If Tom punches Nick and

injures him while boxing, Nick’s suit for battery will not succeed because of the

defense of consent.

C. Assault

1. Definition—defendant engages in an act that:

o Causes reasonable _____________________________________ of an imminent harmful or

offensive bodily contact; and

o The defendant ___________________ to cause apprehension of such contact or to cause

such contact itself.

2. Bodily Contact—not required

3. Plaintiff’s Apprehension

o Must be reasonable

o Plaintiff must be ___________________ of the defendant’s action

Example 8: If you are sleeping and someone gropes you, that person commits

battery even though you are not aware of it. If you are sleeping and someone

pretends to hit you, there is no assault because assault requires awareness.

4. Imminent

o Must be without significant ___________________

o Threats of future harm or hypothetical harm are not sufficient.

5. Mere Words

o Generally, “mere words do not constitute an assault.”

o Words can suffice in certain circumstances. If the defendant is able to carry out the threat

imminently and takes action designed to put the victim in a state of apprehension, then

there may be an assault.

Example 9: The defendant comes up behind the plaintiff in a dark alley and

says, “Your money or your life.” These words in this context can constitute an

assault.

6. Intent—may be present in one of two ways:

o The defendant must intend to cause either:

 An apprehension of imminent harmful or offensive contact; or

 The contact itself.

Example 10: Tom intends to punch Nick, but he misses. He does, however, put

Nick in reasonable apprehension of imminent harmful contact. Nick can make

out a claim of assault.

7. Damages

o No proof of _____________________ damages is required; the plaintiff can recover nominal

damages.

o The plaintiff can also recover damages from physical harm flowing from the assault.

o In appropriate cases, _________________________ damages may be available.

CHAPTER 2: INTENTIONAL TORTS: IIED, FALSE IMPRISONMENT, AND DEFENSES

A. Intentional Infliction of Emotional Distress (IIED)

1. Definition—defendant intentionally or recklessly engages in extreme and

______________________________ conduct that causes the plaintiff severe emotional distress

2. Intent—The defendant must:

o Intend to cause severe emotional distress; or

o Act with ______________________________________ as to the risk of causing severe

emotional distress.

3. Extreme and Outrageous Conduct—Conduct that exceeds the possible limits of human decency,

so as to be entirely _________________________________ in a civilized society.

Example 11: As a practical joke, the defendant tells the plaintiff that his wife

has been killed in an accident.

o Courts are more likely to find conduct or language to be extreme and outrageous if:

 The defendant is in a position of _____________________ or _____________________

over the plaintiff; or

 The plaintiff is a member of a group that has a heightened ________________________

(such as young children or the elderly).

4. Public Figures—Constitutional Limitations

o Public figures and public officials cannot recover unless they can show that the words

contain a _____________ statement of fact that was made with “actual _______________.”

 Actual malice—with knowledge that the statement was false or with

_________________________ disregard of its potential falsity.

o The Supreme Court has suggested that even private plaintiffs cannot recover if the conduct

at issue is speech on a matter of _____________________________. (Snyder v. Phelps)

5. Conduct Toward Third Parties

If the defendant directed extreme and outrageous conduct toward one party and ended up

causing severe emotional distress to another party, the doctrine of transferred intent may make

him liable for IIED, but only in certain circumstances.

a. Immediate family member

An immediate family member of the victim who is present at the time of the conduct and

perceives the conduct may recover for IIED regardless of whether that family member

suffers bodily injury as a result of the distress.

Example 12: A defendant acted outrageously toward a young child and the

child’s mother is present at the time. If the mother experiences emotional

distress, she may be able to recover under the tort of IIED.

b. Bystander

Can recover for IIED if present at the time of the conduct, perceives the conduct, and suffers

distress that results in ______________________________________________ (i.e., physical

manifestation of the distress).

c. Different intentional tort

If the defendant commits a different intentional tort toward one victim, thereby causing

severe emotional distress to another, the same rules apply.

Example 13: The defendant threatens a battery against the mother’s child in

the mother’s presence.

6. Causation—defendant’s actions must be a cause in fact of the plaintiff’s harm.

7. Damages—plaintiff must prove severe emotional distress beyond what a reasonable person

should endure.

o Often, the outrageous nature of the conduct is evidence of the plaintiff’s distress.

o Hypersensitivity—if the plaintiff experiences an unreasonable level of emotional distress,

then the defendant is only liable if aware of the plaintiff’s hypersensitivity.

o Physical injury is not required (except in the case of a bystander, discussed above).

Exam Tip 1: Intentional infliction of emotional distress (IIED) is often tested

against negligent infliction of emotional distress (NIED).

B. False Imprisonment

1. Definition—three elements:

o Defendant intends to ___________________ or ___________________ another within fixed

boundaries;

o The actions directly or indirectly result in confinement; and

o Plaintiff is ________________________ of the confinement or ___________________ by it

Example 14: Locking a person in a closet

2. Confined Within Bounded Area

o Area can be large

o Area need not be ______________________________________

Example 15: The van may be moving, but if the person cannot leave the van,

that is confinement.

3. Methods of Confinement

o Use of physical ___________________, physical force, threats, invalid invocation of legal

_______________________________, duress, or refusing to provide a safe means of escape

o A court may find false imprisonment when the defendant has refused to perform a

___________________ to help a person escape

Example 16: A store clerk refuses to unlock a dressing room in which someone

is locked.

o Shopkeeper’s privilege—a shopkeeper can, for a ___________________________ time and

in a reasonable ___________________, detain a suspected shoplifter.

4. Time of Confinement—immaterial to the tort

5. Intent

o Defendant must act:

 With the ___________________ of confining the plaintiff; or

 ___________________ that the plaintiff’s confinement is substantially certain to result.

o Confinement due to defendant’s negligence—defendant will not be liable under the

intentional tort of false imprisonment

o Transferred intent applies.

Example 17: If Gatsby intends to confine Tom but confines Nick, he is liable to

Nick for false imprisonment.

Example 18: If Gatsby intends to hit Nick with a log but instead blocks him into

a corner with it, such that he is confined, Gatsby is liable to Nick for false

imprisonment.

6. Damages—plaintiff can recover ________________________ damages; actual damages are also

compensable.

C. Defenses to Intentional Torts Involving Personal Injury

1. Consent

a. Express consent—the plaintiff, by words or actions, manifests the willingness to submit to

the defendant’s conduct.

 The defendant’s conduct may not exceed the scope of the consent.

 Consent by mistake—a ___________________ defense unless the defendant caused

the mistake or knew of it and took advantage of it

 Consent by fraud—invalid if it goes to an __________________________ matter. If the

fraud only goes to a collateral matter, consent is still a valid defense.

b. Implied consent—the plaintiff is silent (or otherwise nonresponsive) where their silence and

continued participation can reasonably be construed as consent

 Emergencies—it is fair to assume that someone in need of rescuing would allow a

rescuer to touch him absent explicit consent

 Injuries arising from athletic contests—consent within the scope of the sport

• A defendant could be liable if the conduct is reckless

 Mutual consent to combat

c. Capacity—Lack of capacity may undermine the validity of consent (e.g., youth, intoxication,

incompetency).

2. Self-Defense

a. Use of reasonable force—force that is _____________________________ to defend against

an offensive contact or bodily harm (i.e., not excessive).

b. Duty to retreat

 Traditionally, most courts required retreat before one could use deadly force.

 Most jurisdictions state that you need not retreat before using reasonable,

proportionate force.

Note 1: These are called “stand your ground” laws.

c. Initial aggressor—NOT permitted to claim self-defense unless the other party has

responded to nondeadly force with deadly force

d. Injuries to bystanders—A person acting in self-defense is not liable for injury to bystanders

as long as the injury was ____________________________ and the actor was not negligent

toward the bystander.

3. Defense of Others—may use reasonable force in defense of others, if the others would be

entitled to use self-defense

4. Defense of Property

a. Reasonable force—may be used if the person reasonably believes it is necessary to prevent

tortious harm to the property

b. Deadly force—cannot be used

A person may never use deadly mechanical devices to defend property (e.g., a spring gun).

c. Recapture of chattels (personal property)

 Reasonable force may be used to reclaim ___________________ property that has been

wrongfully taken, but only if you first request its return, unless that would be futile.

 If the original taking was lawful (like a bailment) then only ________________________

means may be used.

d. Force to regain possession of land

 Common law—reasonable force permitted

 Modern rule—use of force is no longer permitted; only legal process

5. Parental Discipline—parents may use reasonable force as necessary to discipline children.

6. Privilege of Arrest

a. Private citizen

 Permitted to use reasonable force to make an arrest in the case of a

___________________ IF:

• The felony has actually been committed; and

• The arresting party has _________________________________________________

to suspect that the person being arrested has committed the felony.

 It ____________ a defense to make a reasonable mistake as to the identity of the felon.

 It ____________ a defense to make a mistake as to whether the felony was actually

committed.

b. Police

 Must reasonably believe that a felony has been committed and that the person arrested

committed it

 An officer who makes a mistake as to whether a felony has been committed is

__________________________ to tort liability.

c. Misdemeanor

 An arrest by a police officer may only be made if the misdemeanor was committed in

the officer’s ________________________.

 An arrest by a private person may only be made if there is a “______________________

_________________________.”

CHAPTER 3: HARMS TO PERSONAL PROPERTY AND LAND

A. Trespass to Chattels

1. Definition—an intentional interference with the plaintiff’s right to ___________________

personal property either by:

o ______________________________________ the plaintiff of the chattel;

o ___________________ or ______________________________________ with the plaintiff’s

chattel; or

o Damaging the chattel.

2. Intent

o Only the intent to do the interfering act is necessary; need not intend to interfere

o ___________________ about the legality of the action is not a defense.

3. Damages

o May recover actual damages, damages resulting from the loss of use, nominal damages, or

the cost of repair

o In cases involving use or intermeddling, plaintiff may only recover actual damages.

B. Conversion

1. Definition—intentionally committing an act depriving the plaintiff of possession of his chattel or

interfering with the plaintiff’s chattel in a manner so serious as to deprive the plaintiff entirely of

the use of the chattel.

2. Intent

o Defendant must only intend to commit ___________________that interferes.

o Mistake of law or fact ___________________ a defense.

3. Damages—plaintiff can recover the chattel’s full value at the time of conversion

4. Trespass to Chattels vs. Conversion—Courts consider the following factors:

o The ____________________________ and extent of the interference;

o Defendant’s intent to assert a right inconsistent with the rightful possessor;

o Defendant’s __________________________________;

o Expense or inconvenience to the plaintiff; and

o Extent of the harm

Note 2: The more extreme the interference, the more likely the court will find

conversion.

C. Trespass to Land

1. Definition—defendant intentionally causes a _______________________ invasion of someone’s

land

2. Intent

o Defendant need only have the intent to enter the land or cause the physical invasion

o Intent to commit a wrongful trespass is NOT required.

o Mistake of _________________ is not a defense.

3. Physical Invasion—includes causing objects to invade the land

4. Trespass vs. Nuisance

o Nuisance—may or may not involve a physical invasion or intrusion

o Trespass—_______________ involves an actual physical invasion or intrusion upon the land

5. Rightful Plaintiff—anyone in ______________________________________ can bring an action,

not just the owner.

6. Damages—no proof of ___________________ damages is required.

7. Necessity as a Defense to Trespass

a. In general—available to a person who enters onto the land of another or interferes with

that individual’s personal property to prevent an ___________________ or other severe

___________________

b. Private necessity (partial or qualified privilege)

 The defendant must pay for ___________________ damages she has caused.

 The defendant is not liable for ___________________ damages.

 The landowner may not use force to exclude the person.

c. Public necessity

 Private property is intruded upon or destroyed when necessary to protect a large

number of people from public calamities.

Example 19: A fire breaks out in town. Gatsby’s swimming pool can be utilized

and even damaged to protect the public from the fire.

 NOT liable for damages to the property

D. Nuisance

Exam Tip 2: The law of nuisance is tested frequently on the MBE.

1. Private Nuisance

a. Definition—an activity that substantially and _____________________________ interferes

with another’s _______________ and _____________________________________ of land

Example 20: Loud noises or foul odors

b. Interference

 Courts are vague regarding what constitutes an unreasonable interference.

• Must be annoying to an ordinary, ________________________________ person

• Someone hypersensitive may not have a cause of action for nuisance.

• Someone who is not actually bothered may still have a cause of action for nuisance

if it would bother an ordinary, reasonable person.

 Courts will also balance the interference with the __________________ of the nuisance.

c. Not a nuisance

 Courts have refused to find the blocking of sunlight or the obstruction of ____________

to be nuisances.

 Exception: The spite fence or spite wall

• If a person puts up a fence or wall with no ____________________ except to block a

neighbor’s view or sunlight, then courts will sometimes find that to be a nuisance.

d. Defenses to private nuisance

 Compliance with state or local administrative __________________________________

• Evidence as to whether the activity is reasonable

• Not a complete defense

 “Coming to the nuisance”

• Courts are hesitant to find a nuisance if you moved somewhere knowing about that

conduct.

• But NOT a complete defense—one factor considered by the court

Example 21: If you knowingly locate your vacation home next to my cement

plant, your “coming to the nuisance” will be a factor in your nuisance suit

against me. It will not be dispositive.

2. Public Nuisance

o An unreasonable interference with a right common to the __________________ as a whole

Example 22: Old examples: blocking a public highway or waterway.

Example 23: New examples: pollution, claims in tobacco litigation, claims in

opioid litigation.

o Public official—can bring an action on behalf of the public to abate the nuisance—e.g., a

state attorney general can sue to enjoin polluting activity that harms public health

o Private individual—generally cannot recover unless the individual has been harmed in a

special or ___________________ way, different from the general public

CHAPTER 4: NEGLIGENCE: OVERVIEW AND DUTY

A. Elements

1. ___________________—an obligation toward another party

2. ___________________—the failure to meet that obligation

3. ________________________________—cause in fact (actual cause) and proximate cause (legal

cause)

4. ______________________—the loss suffered

Exam Tip 3: Approximately half of the Torts questions on the MBE test the

topic of negligence.

Exam Tip 4: When analyzing answer choices to negligence questions, look for

the elements. For instance, if there is no duty, then you can dismiss answer

choices involving breach, causation, or damages.

B. Duty

• A _________________ obligation to act a certain way (as opposed to a social or moral one); two

aspects:

o Is there a duty or not? (like a light switch, on or off)

o What is the nature of that duty—what is the standard of care?

 In most cases, the standard is reasonable care.

 There are some exceptional standards, such as utmost care for common carriers.

1. Is There a Duty? General Principles

o In general, a duty of care is owed to all persons who may ____________________________

be injured by the defendant’s course of conduct.

o In general, there is no duty to act ______________________________________, even if the

failure to act appears to be unreasonable.

a. Duty and Foreseeability

 In many jurisdictions, courts refer to foreseeability in deciding whether there is a duty.

 There is some overlap with the concept of proximate cause.

Exam Tip 5: If you see a problem and you think, this is an unforeseeable

plaintiff, look for an answer that says, “No liability because this is an

unforeseeable plaintiff,” and know that it might be described as a duty problem

or a proximate cause problem.

b. Scope of Duty—Foreseeability of Harm

 Foreseeability of harm alone does not create a duty.

 Most courts emphasize the foreseeability of harm to the plaintiff when evaluating the

existence of a duty.

c. Scope of Duty—Foreseeability of Plaintiff

 No liability to an ______________________________________ plaintiff.

Note 3: Some courts make this a duty issue, some make it a proximate cause

issue.

 Majority view—Cardozo approach

• A duty is owed to a plaintiff only if the plaintiff is a member of the class of persons

who might be foreseeably harmed by the conduct.

 Minority view (the Restatement view)—Andrews approach

• Anytime conduct could harm someone, there is a duty to everyone; whether this

particular plaintiff was foreseeable is a proximate cause issue

Note 4: Whether it is analyzed as duty or proximate cause, there is no liability

toward an unforeseeable plaintiff.

d. Categories of plaintiffs:

 Rescuers—a person who comes to the aid of another is a

______________________________________ victim.

 Cardozo: “Danger invites rescue.”

 Crime Victims—considered foreseeable plaintiffs in certain circumstances

Example 24: A train negligently takes a passenger past his stop and drops him

in a high-crime area. The railroad may be liable in tort if that passenger

becomes a victim of a crime.

2. Affirmative Duty to Act

In general, there is no affirmative duty to help others, but there are exceptions:

a. Assumption of duty—Voluntary Undertaking: a person who voluntarily aids or rescues

another has a duty of _________________________________________ in the performance

of that aid or rescue.

Example 25: At a party, the defendant sees the plaintiff hit his head and offers

to take him to the hospital. She then gets distracted by the party and forgets

about him in the car. If the plaintiff suffers further injury because of the failure

to follow through, the defendant could be liable for her failure to use reasonable

care in the rescue she undertook.

b. Placing another in ___________________

Example 26: If Tom sees Nick drowning in a pool, he does not have a duty to

rescue him. However, if Tom is the one who knocked Nick into the water, then

he does have a duty.

c. By authority—a person with the ability and actual authority to ___________________

another has a duty to exercise reasonable control.

Example 27: A warden’s control over a prisoner; a parent’s control over a child

d. By relationship—defendant has a special relationship with the plaintiff

Example 28: Common carrier-passenger; innkeeper-guest

Note 5: These affirmative duties are not a Superman duty. It is a duty of

______________ care to aid or assist those persons and prevent reasonably

foreseeable injuries.

CHAPTER 5: NEGLIGENCE: STANDARD OF CARE

A. Standard of Care

• Reasonably prudent person under the circumstances—generally an _______________________

standard

1. Mental and emotional characteristics

Objective standard—defendant is presumed to have ___________________ mental abilities and

knowledge

2. Physical characteristics

____________________________ standard—particular physical characteristics are taken into

account; defendant is compared with a reasonably prudent person with like characteristics

Example 29: A blind defendant will be evaluated in comparison with a

reasonably prudent blind person.

3. Intoxication

Objective standard—held to the same standard as sober people unless the intoxication was

______________________________________

4. Children

o __________________________ standard—reasonable child of similar _________________,

intelligence, and experience

o Adult activities—Children engaged in high-risk adult activities (e.g., driving a car) are held to

the objective standard for adults.

B. Standards of Care for Specific Situations

1. Common Carriers and Innkeepers

o Traditional rule: ___________________ care—highest duty of care consistent with the

practical operation of the business

o Many courts today: liable only for ordinary negligence (not a higher standard)

Editorial Note 1: A majority of courts continue to hold common carriers to the

higher standard of care, but now hold innkeepers to the ordinary

negligence standard.

2. Automobile Drivers

o Guests and friends in a car—drivers were traditionally liable only for ___________________

negligent, wanton, or willful misconduct (often under “guest statutes”).

o Most jurisdictions apply a general duty of _________________________________________

standard to the driver of a car.

3. Bailors and Bailees

o Bailment—a bailee temporarily takes __________________________________ of another’s

(the bailor’s) property.

Example 30: A driver leaves a car with a valet.

o Common law: Complicated rules regarding the standard of care in a bailment; for example:

 Bailor must warn a gratuitous bailee of known _________________________ conditions

 If the bailor receives the sole benefit, then the bailee has a lesser duty.

 If the bailee receives a benefit, then he has a higher duty of care; even slight negligence

can result in liability.

4. Emergency Situations—standard of care is that of a reasonable person under the

___________________ circumstances.

C. Possessors of Land—relates to negligence in the maintenance of property (e.g., artificial or natural

conditions on the land)

1. Two Approaches

o Traditional tripartite structure—one-half of jurisdictions continue to follow this approach

 The standard of care depends on the status of the entrant as a trespasser (lowest

standard of care), a licensee (intermediate standard of care), or an invitee (highest

standard of care).

o Modern (California) way—one-half of jurisdictions follow this approach

 Reasonable standard of care under the circumstances, with the status of the entrant as

one of the relevant circumstances

2. Trespassers

Someone on the land without consent or ________________________________

a. Traditional Approach

 Duty: refrain from ___________________, ___________________, intentional, or

reckless misconduct

• Use of a _______________________________ or trap will result in liability

 Undiscovered trespassers—no duty owed

 Discovered or anticipated trespassers—must warn or protect them from hidden

dangers

 “Attractive nuisance” doctrine—may be liable for injuries to children trespassing on the

land if:

a) An ___________________________ condition exists in a place where the owner

___________________ or has reason to know that children are likely to trespass;

b) The land possessor knows or has reason to know that the artificial condition poses

an unreasonable risk of ___________________ or serious _____________________

_______________;

c) The children, because of their age, do not discover or cannot appreciate the danger;

d) The utility of maintaining the condition is slight compared to the risk of injury; and

e) The land possessor fails to exercise reasonable care

o “Flagrant trespassers”—in some jurisdictions, owed an even lesser duty of care

3. Licensees

o Enters the land with express or implied permission

Example 31: Social guests; allowing neighborhood children to walk across the

property on their way to school

o Traditional rule: Land possessor has a duty to either make the property reasonably safe or

warn licensees of ____________________________ dangers.

 No duty to ___________________ for dangers

 Must exercise reasonable care in conducting activities on the land

4. Invitees

o Someone who comes onto the land for a material or _______________________ purpose

 Public invitee—the land is held open to the public

Example 32: State fair

 Business visitor—for a purpose connected to business dealings with the possessor

Example 33: A customer in the owner’s business

o Land possessor owes a duty of ______________________________________—the duty to

use reasonable care to ___________________ the property, discover unreasonably

dangerous conditions, and take reasonable steps to protect the invitee from them.

o Non-delegable duty—cannot avoid the duty by assigning care of the property to an

independent contractor

5. California Way (Minority and Third Restatement approach)

o Some states—reasonable standard of care under all the circumstances for all entrants

 The fact that the land entrant is trespassing is one fact that the jury may consider in

deciding whether the land possessor has exercised reasonable care

o The Third Restatement § 52—reasonable care under the circumstances, except “flagrant

trespassers”

 The only duty to flagrant trespassers is to not act in an intentional, willful, or wanton

manner to cause physical harm.

Example 34: A burglar in a home would be a flagrant trespasser; but someone

injured while walking in a public park at midnight, despite the presence of a

posted notice that the park was closed after dusk, would not be.

Note 6: This distinction has not been widely adopted by the courts.

6. Landlord and Tenant

o Landlord must:

 Maintain safe ___________________ areas;

 Warn of ___________________ dangers (especially for premises that are leased for

public use); and

 Repair hazardous conditions

Note 7: As an occupier of land, the tenant continues to be liable for injuries

arising from conditions within the tenant’s control.

7. Off-Premises Victim

o Land possessor is generally not liable for injuries resulting from ____________________

conditions

 Exception: Trees in urban areas

o Artificial conditions—must prevent _______________________________ risk of harm to

persons not on the premises

o Must exercise reasonable care in conducting activities on the land

CHAPTER 6: NEGLIGENCE: BREACH

A. Breach of Duty—Generally

• Definition—a violation of the _________________________________________________

1. Traditional Approach—Reasonable person standard. Focuses on a common-sense approach of

what the reasonably prudent person would do under the circumstances.

2. Cost-Benefit Analysis—Hand Formula (B < PL) (Burden v. Probability of harm x severity of Loss)

Exam Tip 6: Do not get hung up on the difference here; it’s really just two ways

of getting to the same result.

B. Breach of Duty—Specific Rules

1. Custom—majority practice within an industry or profession

a. Generally—evidence of custom _________________________________, but not dispositive

Example 35: Imagine that most tugboats have radios on board. This fact is

relevant and therefore admissible in a case where the jury must determine if it

was negligent for a tugboat not to have a radio. But it is NOT dispositive.

b. Professionals—lawyers, doctors, accountants, electricians

 Custom is admissible and ________________________________________

• Compliance with custom is a shield = ____________________

• Deviation from custom is a sword = ____________________

c. Physicians

 Traditional rule—physician in the “same or similar” locality

 Modern trend—national standard

 Informed consent—Patients must give informed ____________________:

• Doctors must explain ____________________ of medical procedures.

• Doctors are not required to inform the patient if:

o The risks are commonly ____________________;

o The patient is unconscious;

o The patient waives/refuses the information;

o The patient is incompetent; or

o The patient would be harmed by disclosure (e.g., it would cause a heart attack).

2. Statutes—when a law or statute establishes a particular standard of care, violation of the law

constitutes a breach; unexcused statutory violations constitute negligence

____________________________.

a. Elements:

1) A criminal law or regulatory statute imposes a particular ____________________ for

the protection or benefit of others;

2) Defendant ___________________________ the statute;

3) Plaintiff must be in the ____________________ of people intended to be protected by

the statute;

4) The accident must be the _____________________________________ that the statute

was intended to protect against; and

5) The harm was ____________________ by a violation of the statute

Example 36: Daisy is speeding and hits Myrtle with the car. The speeding law

imposes a duty for the protection of others; Daisy violated it; Myrtle is in the

intended class of protected persons; this is exactly the type of harm the statute

is meant to protect against; and let’s stipulate that the harm was caused by the

statutory violation—absent the speeding, Myrtle would not have been hit.

Negligence per se applies.

Example 37: A law states that sheep must be in pens on a ship. The law is

designed to protect livestock from contagious diseases. Some sheep on a ship

are not in pens, and they are washed overboard. The violation of the statute

does not constitute negligence per se, because the harm that occurred is not the

type that the statute was intended to protect against.

Exam Tip 7: At the heart of a negligence per se analysis is the question: is this

the type of harm that the statute was intended to prevent?

b. Violation by plaintiff—counts as comparative or contributory negligence

c. Compliance with a statute—generally does not constitute reasonable care; does not mean

the person was NOT negligent

Example 38: I could be observing the speed limit, but that does not mean I was

driving carefully. Maybe I was doing something else negligent, maybe I should

have been driving even more slowly given road conditions.

d. Defenses—Excuse

 Defendant may show that complying with the statute would be even more dangerous

than violating the statute

 Compliance was ________________________________________ or an emergency

justified violation of the statute

 Incapacity (physical disability), exercised reasonable care in trying to comply, vagueness

Example 39: A brother and sister are walking along the shoulder of the

highway with their backs to traffic. They are hit by a car. A statute says that

pedestrians on the shoulder should walk facing traffic, but they claim breaking

the statute was not negligent per se because the side of the road they were

supposed to walk on had very heavy traffic, and they were walking on the safer

side. An excuse may be available.

CHAPTER 7: NEGLIGENCE: BREACH (CONT.)

A. Res Ipsa Loquitur

1. General Principle—in some cases, circumstantial evidence of negligence is sufficient evidence of

negligence.

Example 40: A barrel rolls out of a building and injures a passerby. A jury

could reasonably conclude that some type of negligence was the most likely

cause of that injury.

2. Traditional Elements:

1) The accident was of a kind that does not ordinarily ____________________ in the

absence of negligence;

2) It was caused by an agent or instrumentality within the __________________________

____________________ of the defendant; and

3) It was not due to any action on the part of the _________________________

3. Modern Trends

a. Medical malpractice—in cases in which medical personnel acted negligently to harm a

patient, a small number of jurisdictions shift the burden by holding ALL defendants jointly

and severally liable unless they can exonerate themselves.

b. Products liability—many courts ignore the exclusivity requirement when it is clear that the

defect originated upstream of the package’s wrapping.

c. Comparative-fault jurisdictions—many comparative-fault jurisdictions (discussed later)

loosely apply the third element (i.e., that the harm was not caused by any action by the

plaintiff).

4. Third Restatement—applies the elements generously:

o The accident is a type of accident that _________________________ happens as a result of

negligence of a class of actors; and

o The defendant is a member of that class.

Exam Tip 8: Res ipsa loquitur just reminds the trier of fact that circumstantial

evidence can be sufficient to infer negligence.

5. Procedural Effect—in most jurisdictions

o Allows the case to go to the jury

o Avoids a _________________________________________ in favor of the defendant (allows

the plaintiff to make a prima facie case of negligence without direct evidence of negligence)

o Jury can infer negligence, but need not

CHAPTER 8: NEGLIGENCE: CAUSATION—CAUSE IN FACT

A. Causation—has two components:

• Cause in fact, or actual cause

• Proximate cause, or legal cause

B. Cause in Fact

1. “But-for” test—plaintiff must show that the injury would not have occurred “but for” the

defendant’s negligence

Example 41: The brakes on a car are negligently repaired. The car is struck by

a meteorite, injuring the driver. The person who repaired the brakes is not

liable, because his negligence is not the but-for cause of the injury.

2. Multiple or indeterminate causes—the “but-for” test can be problematic in some cases

a. Common problematic circumstances:

 Multiple _____________________________________________—it cannot be said that

any of the defendant’s tortious conduct necessarily was required to produce the harm;

Example 42: Several partygoers throw a piano off a roof, damaging a car. The

plaintiff will have difficulty showing that the conduct of any defendant was

necessary to cause the plaintiff’s harm.

 Multiple possible _________________________—the plaintiff cannot prove which of

various possible causes actually caused the harm; or

 Loss of chance—patient is misdiagnosed due to the defendant’s negligence but cannot

show that the misdiagnosis actually caused the harm

b. “Substantial factor” test

 Used when there are conceptual problems with causation due to multiple causes

 The test is whether the defendant’s tortious conduct was a “substantial factor” in

causing the harm.

 Third Restatement refers to this as “multiple sufficient causes” doctrine

Example 43: There are two separate fires, which merge and consume the

plaintiff’s home. Either fire alone could have destroyed the home, so the

plaintiff cannot show which fire was the actual cause. The plaintiff can show

that each fire was a substantial factor in causing the harm.

c. Alternative causation

 Plaintiff’s harm was caused by only one of a few defendants (usually two) and each was

negligent, and it cannot be determined which one caused the harm.

Example 44: Three friends were hunting, and two of them negligently fired

their guns toward the third friend. The third friend is hit by one of the bullets,

but he cannot show which gun it came from.

 Courts will shift the burden of proof to the defendants—will impose joint and several

liability on both unless one can show he did not cause the harm

d. Concert of action—if two or more tortfeasors were acting together

_________________________________ and that causes the plaintiff’s harm, then all

defendants will be jointly and severally liable.

3. Loss of chance of recovery (medical misdiagnosis)

o Under the traditional but-for analysis, a patient with less than a 50% chance of survival

could not recover for negligent misdiagnosis because they were likely to die anyway; the

doctor’s negligence was not a “but-for” cause of the patient’s death.

Example 45: A patient has a 20% chance of survival. The doctor negligently

misdiagnoses the patient’s condition, reducing the patient’s chance of survival

even further. The patient then dies.

o Loss of chance doctrine—if a physician negligently reduces the plaintiff’s chance of survival,

then that plaintiff can recover for the lost chance of recovery.

 Plaintiff cannot recover the entire amount of damages; but can recover the portion that

represents their lost chance of survival

Example 46: Plaintiff was misdiagnosed by defendant doctor. The plaintiff’s

chances of survival were 40% without the negligent misdiagnosis and 25% after

the misdiagnosis. Plaintiff’s total damages were $1,000,000.

Patient’s lost chance = ______________________

Defendant’s liability = $_____________________________________________

CHAPTER 9: NEGLIGENCE: CAUSATION—PROXIMATE CAUSE (LEGAL CAUSE)

Note 8: Recall that there is no liability to an unforeseeable plaintiff whether

that rule is characterized as a duty issue or a proximate cause issue.

A. Scope of Liability

• Person is liable for the _____________________ that made her conduct negligent. The issue is

whether the injury that occurred was within the scope of the defendant’s breach.

Example 47: A speeding trolley is hit by a falling tree. Although speeding is

negligent, being hit by a tree is not within the scope of liability—it is not one of

the risks that makes speeding negligent in the first place.

Example 48: An adult gives a handgun to a child. The child drops the gun on

his foot, injuring himself. While it is foreseeable that a child might drop a heavy

object, the heaviness of the gun is not what makes giving a gun to a child

negligent in the first place. This injury could be outside the scope of liability.

Example 49: The defendant fails to put a barricade around an open shaft at a

construction site. Barricades are supposed to be used to protect people from

falling down the shaft, but in this case a radiator falls down the shaft and

injures a person at the bottom. The judge would have to decide if this particular

harm was within the scope of what made the conduct negligent in the first

place. (Cardozo said yes, this is within the scope of liability.)

Exam Tip 9: When asking whether a particular consequence of negligence is

too remote, ask “is this what made the conduct negligent to begin with?”

B. Foreseeability of Harm

• Majority rule is no liability for an unforeseeable type of harm

Example 50: If Daisy speeds down a street and causes a pedestrian to jump out

of the way and sprain an ankle, then Daisy is liable. If the sound of the car

reminds a passerby of a car the passerby used to own, and the sound makes the

passerby want to go for a drive, and the passerby is later in a car accident while

driving, then Daisy is not liable.

C. Intervening vs. Superseding Causes

• Courts used to distinguish between “intervening” causes, which do not break the chain of

causation, and “superseding” causes, which do. Some courts still make this distinction.

• The real issue is whether the injury is within the _________________________ of what made

the conduct negligent in the first place.

• Third-party criminal acts may or may not break the chain of causation.

Example 51: A train negligently takes a passenger past his stop and drops him

in a high-crime area. The passenger is assaulted on the way home. The

railroad may be liable in tort. The assault is an intervening criminal act, but

that does not relieve the railroad of liability. It is entirely foreseeable that such

an assault would happen—that’s exactly the kind of risk that made the

railroad’s behavior negligent in the first place.

Example 52: Daisy speeds down a street and causes a pedestrian to jump out

of the way. While standing there on the sidewalk, the person is mugged by a

third party. Daisy is not liable: it is not foreseeable that speeding will cause

someone to get mugged. It’s not one of the risks that made this conduct

negligent in the first place.

D. Extent of Damages

• The defendant is liable for the full extent of the plaintiff’s injuries, even if the extent is unusual

or unforeseeable (Eggshell plaintiff rule).

Example 53: Jordan is not watching where she is going and rear ends another

car. Most people would not experience major injury, but the driver of the other

car has a bone condition that leads her to have a serious injury. Jordan is liable

for the full extent of the damages, even if she could not foresee them.

Exam Tip 10: The TYPE of damages must be foreseeable, but not the EXTENT.

CHAPTER 10: NEGLIGENCE: DAMAGES

A. Compensatory Damages

1. Actual (Compensatory) Damages

o Purpose is to make the plaintiff whole again

o Sometimes, a plaintiff who suffers a _________________________ injury can also recover

for ________________________________________ damages (i.e., “parasitic damages”).

2. Mitigation of Damages

o Plaintiff must take steps to mitigate damages

o Can be considered a duty, but it’s more of a limitation on recovery

3. Personal Injury—Categories of Compensatory Damages

o _____________________________________________________, both past and future

o Lost income and reduced ______________________________________________________

o Pain and suffering, both past and future

4. Property Damage

a. General rule—plaintiff may recover the difference in the ____________________________

___________________ of the property before and after the injury

b. Cost of repair or replacement value often allowed as an alternative measure of damages

B. Collateral-Source Rule

1. Traditional rule

o Benefits or payments to the plaintiff from outside sources are not credited against the

liability of any tortfeasor.

Example 54: The plaintiff’s healthcare costs were covered by the plaintiff’s

health insurance, not the plaintiff. Under the collateral source rule, the

defendant cannot claim that his damages should be reduced by that amount.

o Evidence of such payments is not admissible at trial.

Note 9: Typical insurance plans include a provision that any amounts recovered

by the plaintiff would first reimburse the insurance company for payments

made to cover the plaintiff’s expenses.

2. Modern trend

Most states have passed statutes that eliminate or substantially modify the collateral source

rule to avoid double recovery.

C. Punitive Damages

• Purpose is to punish and deter future conduct

• May be available if the defendant acted ______________________, ______________________,

recklessly, or with ______________________, or if an inherently malicious tort is involved

• Availability may be limited by statute

• The U.S. Supreme Court has held that as a matter of due process punitive damages must be

within a single-digit ratio of any compensatory damages.

Example 55: A punitive damages award that is ten times higher than the

compensatory award would be constitutionally suspect. A punitive award that

is nine times the amount of the compensatory award would not raise as much

of a red flag because it stays within the single-digit ratio.

CHAPTER 11: NEGLIGENCE: SPECIAL RULES OF LIABILITY

A. Pure Emotional Harm—Negligent Infliction of Emotional Distress (NIED)

• At common law, plaintiffs could not recover for NIED absent a physical injury.

• Now, plaintiffs can recover for NIED in specific circumstances:

1. Zone of danger—a plaintiff can recover for NIED if:

o The plaintiff was within the “zone of danger” of the threatened physical impact; and

o The threat of physical impact caused emotional distress.

Example 56: A pedestrian is on the sidewalk and a car is being driven right at

them. They are in the zone of danger of this negligent car, but the car does not

actually hit the pedestrian. If the pedestrian experiences emotional distress

from this event, they can recover for NIED.

Exam Tip 11: Think of this as analogous to assault (apprehension of contact).

2. Bystander recovery—a bystander can recover for NIED if the bystander:

1) Is _____________________________________ to the person injured by the

defendant;

2) Was present at the scene of the injury; and

3) _______________________________________________________________

the injury.

 These are proximity requirements—relational, geographic, and temporal

3. Special relationship

o Negligent mishandling of a ______________________

o Negligent medical information (e.g., a negligent misdiagnosis)

4. Physical manifestation—most jurisdictions require some physical manifestation of distress

(such as nausea, insomnia, or miscarriage).

B. Pure Economic Loss

• A plaintiff who suffers only economic loss without any related personal injury or property

damage cannot recover in negligence.

Example 57: Someone negligently damages a road. A business owner loses

business due to the damage to the road. The owner cannot recover for that

economic loss because the business owner has not suffered any personal injury

or property damage.

Note 10: If the plaintiff can prove personal injury or property damage, then the

plaintiff can recover those damages and also economic damages.

C. Wrongful Death and Survival Actions

1. Wrongful death

o Brought by the decedent’s _________________________ or representative to recover

losses suffered by the spouse or representative as a result of the decedent’s death

o Can include loss of economic support and loss of consortium

2. Survival action

o Brought by a representative of the decedent’s estate on behalf of the __________________

for claims that the decedent would have had at the time of the decedent’s death

o Claims include damages resulting from personal injury or property damage

D. Recovery for Loss Arising from Injury to Family Members

• Family members (typically a spouse) can claim loss of consortium or companionship.

E. “Wrongful Life” and “Wrongful Birth” Claims

1. Wrongful life

o Claim by _________________________ for defendant’s negligent failure to properly

perform a contraceptive procedure or diagnose a congenital defect

o A few states permit a “wrongful life” action, but they limit the child’s recovery to special

damages attributable to the disability.

2. Wrongful birth

o Claim by _________________________ for defendant’s negligent failure to properly

perform a contraceptive procedure or diagnose a congenital defect

o Many states do permit recovery for the medical expenses of labor as well as for pain and

suffering.

o In the case of a child with a disability, may be able to recover damages for the additional

medical expenses of caring for that child, and, in some states, may recover for emotional

distress as well

CHAPTER 12: NEGLIGENCE: VICARIOUS LIABILITY AND IMMUNITIES

A. Vicarious Liability—when one person is held liable for another person’s negligence

Example 58: An employer being held liable for an employee’s torts

• Joint and Several Liability—The responsible party can still be held liable for his negligence, but

the employer is also liable.

o Sometimes the individual employee cannot be identified; the employer would be still be

liable under joint and several liability.

• Indemnification—The party held vicariously liable may seek indemnification from the party who

was directly responsible.

1. Respondeat Superior

o The employer is held vicariously liable for the negligence of an employee, if it occurred

within the __________________________________________________________________.

o Distinction: Employer’s own negligence v. vicarious liability for an employee’s conduct

 Direct negligence—the employer is liable for the employer’s own negligence.

 Vicarious liability—the employer is liable for the employee’s actions.

Example 59: A pizza company hires bad drivers or provides them with alcohol

before their shift. The employer’s actions are negligent in their own right.

Example 60: The pizza company is as careful as possible in the hiring, training,

and supervising of its employees, yet one employee decides, on his own,

contrary to instructions, and without the employer’s knowledge, to consume

alcohol while delivering pizzas, and he negligently gets into an accident.

Vicarious liability applies.

a. Intentional torts—employers are generally not liable for the intentional torts of employees

 Exception: when the employee’s conduct is within the ___________________________

_______________________________ (e.g., force is inherent in the employee’s work)

Example 61: A bar bouncer beats up a customer thinking he is serving the

employer’s interests.

b. Scope of employment—Frolic and detour

 Detour (_______________ deviation from the scope of employment)—the employer

________________ liable.

 Frolic (______________ deviation from the scope of employment)—the employer

________________ liable.

Example 62: A pizza driver stops by the cleaners to get his dry cleaning while

delivering pizzas and injures someone in the parking lot. This could be

considered a detour. On the other hand, a pizza driver who skips out on work

for a couple hours to have a picnic is likely to be on a frolic.

2. Torts Committed by Independent Contractors

o Employers are generally _________________________ for torts committed by independent

contractors.

Example 63: You hire someone to paint your house while you are on vacation.

The painter is negligent in the process and injures someone. You are not liable,

because the painter is an independent contractor.

a. Independent contractor v. employee

If the employer retains a right of _________________________ over the way that employee

does the work, then the courts will treat that person as an employee.

b. Vicarious liability for an independent contractor’s torts

 Non-delegable duties:

• Inherently ___________________________________ activities;

• Duties to the public or specific plaintiffs for certain types of work, such as

construction work by a roadway;

• Shopkeepers have a duty to keep the premises safe for the public

 Apparent agency doctrine—general agency doctrine; an independent contractor (IC)

will be treated as an employee if:

• The injured person accepted the IC’s services based on a reasonable belief that the

IC was an employee, based on manifestations from the putative employer; and

• The IC’s negligence is a factual cause of harm to one who receives the services, and

such harm is within the scope of liability.

Example 64: You accept medical services from a doctor wearing a name tag

with the hospital logo. If the doctor commits malpractice, you may be able use

apparent agency doctrine to establish the hospital’s vicarious liability, even if

the hospital says the doctor was an IC, if you can show you reasonably relied on

the hospital’s representation, as manifested in the name tag.

3. Business Partners—can be liable for the torts of other business partners committed

__________________________________________________ of the business’s purpose.

4. Automobile Owners

a. Negligent entrustment—an owner can be directly liable for negligently entrusting a vehicle

(or any other dangerous object) to someone who is not in the position to care for it.

b. Family-purpose doctrine—the owner of an automobile may be vicariously liable for the

tortious acts of any family member driving the car with permission.

c. Owner liability statutes—the owner of an automobile may be vicariously liable for the

tortious acts of anyone driving the car with permission.

Editorial Note 2: The Professor misspoke with regard to owner liability

statutes. The owner can be vicariously liable for torts committed by

anyone driving with permission.

5. Parents and Children

a. General rule—parents generally ______________________ vicariously liable for their minor

children’s torts.

b. Negligence of parents—parents can be liable for their own negligence with respect to their

children’s conduct (e.g., negligent supervision)

6. “Dram Shop” Liability

o Holds bar owners, bartenders, and even __________________________________________

liable for injuries caused when people drink too much alcohol and injure third parties

o Liability is based on statute and varies by state, especially liability for social hosts.

o Direct liability for the server’s own negligence in serving the person

Exam Tip 12: These laws hold the bar or social host liable IN ADDITION to the

drunk driver, not INSTEAD OF the drunk driver.

B. Immunities

1. Federal and State Governments

o Traditionally, state and federal governments were immune from tort liability.

o Immunity has been _________________________ by statutes.

a. Federal Tort Claims Act

 Expressly _________________________ immunity and allows the federal government

to be sued for certain kinds of torts

 There are exceptions (i.e., situations in which the federal government maintains

immunity), including certain enumerated torts, _________________________________

functions, and traditional governmental activities.

b. State governments and municipalities

 Most states have waived immunity to some extent.

 Municipalities are generally governed by the state tort claims statute.

 Governmental v. proprietary functions

• Governmental functions (e.g., police, court system)—immunity ________________

• Proprietary functions (often performed by a private company, e.g., utilities, parking

lots)—immunity _______________________________________________________

c. Government officials

 _____________________________________ functions—immunity applies

 _______________________________ functions—no immunity

 Westfall Act—precludes any personal liability on the part of a federal employee under

state tort law.

2. Intra-Family Immunities—largely eliminated; a family member can be sued for negligently

injuring another family member

o Core parenting activities—immunity still applies

3. Charitable Immunity—______________________________ in most states, though some states

still limit recovery

CHAPTER 13: NEGLIGENCE: SHARING LIABILITY AMONG MULTIPLE DEFENDANTS

A. Joint and Several Liability

• Two or more defendants are each liable for a single and indivisible harm to the plaintiff; each

defendant is subject to liability to the plaintiff for the entire harm.

• Plaintiff can recover all of his damages from any negligent party.

• Applications:

o Two or more tortfeasors;

o Tortfeasors acting in _________________________;

o Alternative liability;

o Res ipsa loquitur used against multiple defendants;

o Both _________________________ and _________________________ are liable

Example 65: Defendant 1 and Defendant 2 have been found jointly and

severally liable for a judgment. However, Defendant 2 is cannot be found to

enforce the judgment. Defendant 1 will be liable for the entire amount of

damages.

Example 66: Contribution: Following the above example, Defendant 1 pays the

entire judgment to the plaintiff. Defendant 1 now has a right of contribution

against Defendant 2 for paying more than his share of the total liability.

Example 67: Indemnification: Defendant 1 is an employer and Defendant 2 is

the negligent employee. Defendant 1 pays the full amount of the judgment and

seeks full reimbursement for payment pursuant to the employee’s duty of

indemnification.

• Multiple defendants can be held jointly and severally liable, even if a jury apportions each

defendant a different percentage of fault.

Note 11: Some jurisdictions limit a defendant’s joint liability if he is less than

10% at fault. The defendant will be liable only for his share of fault.

CHAPTER 14: NEGLIGENCE: DEFENSES

A. Contributory Negligence

• If the plaintiff was negligent in some way, that negligence completely _____________________

the plaintiff’s recovery.

Example 68: Jordan and Daisy are both driving negligently. Owing to both

their negligence, they hit each other. Jordan tries to sue Daisy for negligently

causing her injuries, but Daisy has a defense of contributory negligence that is a

complete bar to recovery.

• This is the old common-law rule and is still the rule in only a handful of states.

1. “Last clear chance” doctrine

o Allows a negligent plaintiff to recover upon showing that the defendant had the last clear

chance to avoid injuring the plaintiff but failed to do so.

Example 69: Daisy is speeding and sees Myrtle negligently walk into the street.

She should not feel free to run her over on the theory that Myrtle’s contributory

negligence will relieve her of liability. If Daisy has the last clear chance to avoid

the injury, then contributory negligence will not be a bar.

B. Comparative Fault

• Plaintiff’s negligence does not completely bar recovery; it _________________________ the

plaintiff’s ability to recover

• Most jurisdictions have adopted a comparative fault approach.

1. Pure comparative negligence—plaintiff’s recovery is reduced by plaintiff’s percentage of fault

Example 70: Jordan and Daisy negligently collide, and Jordan sues Daisy. If the

jury finds that the plaintiff (Jordan) is 10% at fault and Daisy is 90 % at fault.

Jordan will recover only 90% of the judgment that she was not at fault for.

Example 71: Alternatively, If the jury finds that the Jordan (the plaintiff) is 90%

at fault, then she can recover only 10% of her damages.

2. Modified comparative negligence

o If the plaintiff is MORE at fault than the defendant, then the plaintiff’s recovery is

_________________________.

Example 72: Jordan and Daisy negligently collide, and Jordan sues Daisy. If the

jury determines that Jordan is more at fault than Daisy, she cannot recover.

o Some jurisdictions: If the plaintiff and defendant are EQUALLY at fault, then the plaintiff’s

recovery is barred.

Example 73: Jordan and Daisy negligently collide, and Jordan sues Daisy. If the

jury determines that Jordan is 50% at fault, she cannot recover.

a. Multiple defendants

Example 74: Jordan, Daisy, and Gatsby are all driving negligently and end up in

a collision. Jordan sues Daisy and Gatsby in a modified comparative negligence

jurisdiction.

 If there is more than one defendant, the plaintiff’s negligence is compared with the total

negligence of all defendants combined.

Example 75: Jordan is 40% at fault and Daisy and Gatsby are each 30% liable

(60% liable together). Jordan can recover because her percent of fault is less

than Daisy and Gatsby combined.

Example 76: Jordan is 60% at fault and Daisy and Gatsby are each 20% at

fault. Jordan cannot recover because she is more at fault than the defendants

combined.

3. Relationship to other defenses

o Most courts no longer use the last clear chance doctrine in a comparative negligence

jurisdiction.

o Comparative fault is not a defense to _______________________________________ torts

o Will reduce the plaintiff’s recovery even if the defendant’s conduct is willful, wanton, or

reckless

C. Imputed Contributory Negligence

• One party’s negligence is imputed to another party

Example 77: An employee is negligently driving during the scope of

employment and is in a car accident with another negligent driver. The

negligence of the employee might be imputed to the employer in the employer’s

suit against the third party who negligently damaged the employer’s vehicle.

Example 78: Can also apply to business partners

• Imputed contributory negligence is generally disfavored. It does NOT apply to:

o A child plaintiff whose parent’s negligence was a contributing cause of her harm, in a suit

against a third party.

o A married plaintiff whose spouse was contributorily negligent in causing the harm, in a suit

against a third party.

D. Assumption of the Risk

• Applies when a party ______________________________ and ___________________________

embraces a risk for some purpose of his own

• Analogous to the defense of _________________________ in intentional torts

• Can be express or implied

1. Express assumption of risk

o Typically a writing, such as an exculpatory clause in a contract

o In general, parties can contract to disclaim liability for negligence.

o Courts will ask two questions:

1) Is the waiver _________________________?

2) Is the waiver ________________________________?

o Courts might not enforce exculpatory provisions in certain situations:

 The waiver disclaims liability for ______________________________ or

____________________ misconduct;

 There is a gross disparity of _________________________________________________

between the two parties;

 The party seeking to enforce the provision offers services of great importance to the

public (e.g., medical services);

 The provision is subject to contract defenses (e.g., fraud or duress);

 The enforcement would be against public _________________________

2. Implied assumption of risk

a. Participants in and spectators of athletic events

 Courts often hold that a participant or spectator cannot recover because the party knew

of the risks and chose to accept those risks.

b. Unreasonably proceeding in the face of known, specific risk

 Occurs when the plaintiff voluntarily encounters a known, specific risk

 Contributory negligence jurisdictions and a minority of comparative-fault

jurisdictions—this form of assumption of the risk remains a total bar to recovery.

 Most comparative fault jurisdictions—this form of assumption of the risk has been

merged into the comparative-fault analysis and merely reduces recovery.

• The issue is whether the plaintiff reasonably or unreasonably encountered the risk

CHAPTER 15: STRICT LIABILITY

A. In General

• Under strict liability, defendant will be liable no matter how ____________________ they were

• Three general categories:

o Abnormally _____________________________ activities;

o _________________________; and

o Defective products

B. Abnormally Dangerous Activities

1. Basic Rule—a defendant engaged in an abnormally dangerous activity will be held strictly liable

for personal injuries and property damage caused by the activity, regardless of

________________________________ to prevent the harm.

2. “Abnormally Dangerous” Activity factors:

o Whether it creates a foreseeable and highly _____________________________ risk of harm

even when the actor takes due care;

o The _________________________ of the harm resulting from the activity;

o The appropriateness of the _____________________________ for the activity;

o Whether it has great value to the community

Example 79: Blasting is the classic example.

3. Scope of Liability—defendant is liable for the harm that _____________________ from the risk

that made the activity abnormally dangerous

Example 80: If your truck is full of explosives and it blows up, then you may be

strictly liable.

Example 81: If your truck is full of explosives and you run over a pedestrian,

then you are liable only if you were negligent, because that is not the risk that

made explosives abnormally dangerous.

C. Animals

1. Wild Animals—animals that, as a ____________________ or _________________, are not

customarily kept in the service of humankind

Editorial Note 3: This definition of “wild animals” is derived from the Second

Restatement. The Third Restatement narrows this definition by excluding

animals that pose no obvious risk of causing substantial personal injury.

a. Dangerous propensity—owners are strictly liable for the harm arising from the animal’s

dangerous propensities.

b. Liability to trespassers

 Injuries caused to ______________________ or ____________________—strictly liable

 _______________________________—not strictly liable

• Exception in some jurisdictions: injuries caused by a __________________________

________________________

2. Domestic Animals

a. Known to be dangerous—if the owner _________________ or has reason to know that the

particular animal has _________________________________________________________,

the owner is strictly liable.

b. “Dog-bite” statutes—many states hold dog owners strictly liable for injuries caused by dogs

Note 12: “Dog-bite” statutes vary widely from state to state.

3. Trespassing Animals—the owner of any animal is strictly liable for reasonably

_________________________________ damage caused by his animal while trespassing on

another’s land.

Example 82: The cows get out and trample a neighbor’s property.

a. Exceptions:

 Household pets, unless the owner knows or has reason to know that the pet is

_________________________ on another’s property in a harmful way

 Animals on public roads—a ___________________________________ standard applies

D. Defenses to Strict Liability

1. Contributory Negligence—the plaintiff’s contributory negligence _________________________

bar recovery.

2. Comparative Negligence—jurisdictions vary:

o In some, the plaintiff’s negligence does not bar recovery;

o In others, and under the Third Restatement, the plaintiff’s negligence will diminish her

recovery.

3. Assumption of the Risk—the plaintiff’s assumption of the risk is a ________________________

_____________________ to recovery.

CHAPTER 16: PRODUCTS LIABILITY

A. Overview—a plaintiff can bring different types of claims for products liability:

• Negligence—plaintiff must prove duty, breach, causation, and damages

• Strict Liability for Defective Products

• Breach of Warranty Claim

B. Strict Products Liability

• There are three types of product defects: manufacturing defects, design defects, and failure to

warn.

Example 83: A motorcycle may be defective in different ways:

Manufacture: The motorcycle has plastic bolts where there are supposed to be

metal bolts; the motorcycle was defectively manufactured.

Design: The motorcycle was built as designed, but it is unstable when carrying a

passenger or heavy rider; the motorcycle’s design is defective.

Failure to warn: The manufacturer should have warned riders that the

motorcycle cannot accommodate passengers.

1. Elements of a Claim—the plaintiff must show:

o The product was _________________________ (in manufacture, design, or failure to warn);

o The defect existed when the product left the defendant’s ________________________; and

o The defect caused the plaintiff’s injury when the product was used in a

_____________________________________ way.

Note 13: Strict liability can apply to multiple parties in the chain of producing

and selling the product. Potential defendants are discussed more below.

2. Defective Product

a. Manufacturing defect

 The product deviated from its intended _________________________.

 The product does not conform to the manufacturer’s own

__________________________________________________.

b. Design defect—two tests:

 Consumer expectation test—the product is defective in design if it is less safe than the

_________________________________________________________ would expect.

 Risk-utility test—the product is defective in design if the risks outweigh its benefits;

must show that there is a reasonable ________________________________ design

Note 14: The more technical the product is, the more likely it is that experts will

be required and the risk-utility test will apply.

c. Failure to warn—of a foreseeable risk that is not ___________________ to an ordinary user

 Learned Intermediary rule (Often applies to prescription drugs):

• Manufacturers of prescription drugs must warn the prescribing

____________________________.

• Exception: drugs marketed directly to consumers

d. Inference of defect—courts may allow proof of a defect by ___________________________

evidence, especially when the defect causes the product to be destroyed.

3. Plaintiffs

o No privity requirement—can sue up and down the chain of production or distribution

o Anyone foreseeably injured by a defective product, including purchasers, other users, and

bystanders

4. Defendants

o Anyone who ________________ the product when it is defective is potentially strictly liable.

o Must be in the chain of distribution and in the _____________________________ of selling

 Casual sellers—not strictly liable, but may be liable for negligence

Example 84: Selling something to a friend or neighbor.

o The seller may seek indemnification from another party (e.g., the manufacturer).

CHAPTER 17: PRODUCTS LIABILITY (CONT.)

A. Strict Products Liability (Cont.)

1. Damages

o Plaintiff can recover for __________________________________________________ or

__________________________________________________

o Purely economic loss—generally not permissible under a strict-liability theory

Note 15: May be brought as a breach of warranty claim (discussed below).

2. Defenses

a. Comparative fault—the plaintiff’s own _______________________________ will reduce his

recovery in a strict-products-liability action.

b. Contributory negligence—courts hesitate to allow the plaintiff’s negligence to completely

bar the plaintiff’s recovery against the defendant for a defective product.

c. Assumption of the risk—if the risk is one that the plaintiff knew about and voluntarily

chose, then the plaintiff will not be allowed to recover.

d. Product misuse, modification, or alteration

 Generally, the manufacturer (or seller) will be liable as long as the misuse, modification,

or alteration was __________________________________________________.

Example 85: A manufacturer makes a car that explodes at speeds over 80

mph. Drivers are not supposed to speed, but it is foreseeable that drivers

exceed the speed limit at times. The manufacturer will be liable for the defect.

 Foreseeable misuses, modifications, and alterations are viewed as examples of

comparative negligence.

e. Substantial change in the product—_________________________ recovery

Example 86: Using a ceiling fan as an airplane propeller

f. Compliance with governmental standards

 Compliance with safety standards is __________________________________________

that the product is not defective, but it is not _________________________ evidence.

 Exception: federal preemption—when Congress has preempted regulation in a

particular area (expressly by statute or impliedly by regulating the field)

g. “State of the art” defense

 In some jurisdictions, the relevant state of the art at the time of manufacture or warning

is evidence that the product is not defective.

 In other jurisdictions, compliance with the state of the art is a _____________________

______________ to recovery.

h. Disclaimers, limitations, and waivers—generally ______________________________ strict-

liability claims for defective products

B. Warranties

• Warranty claims may generally be brought up and down the distribution chain.

• Privity is not required.

1. Implied warranties—Two types:

o Merchantability—the product is suitable for the _________________________ purposes

for which it is sold.

o Fitness for a particular purpose—the seller knows the particular purpose for which the

product is being sold, and the buyer ___________________ on the seller’s skill or judgment.

2. Express Warranties—an affirmation of fact or a promise by the seller that is part of the basis of

the bargain

3. Defenses

a. Disclaimers

Note 16: Disclaimers are covered in the Contracts materials.

b. Tort Defenses

 Assumption of the risk

 Comparative fault

 Contributory negligence

 Product misuse

C. Review

1. Three types of suits:

o Negligence

o Strict liability for defective product

o Breach of implied warranty

2. Three ways a product may be defective:

o Manufacture

o Design

o Warning

CHAPTER 18: DEFAMATION

A. In General

• In a defamation action, a plaintiff must prove that the defendant:

o Made a defamatory statement;

o That is __________________________________________________ the plaintiff;

o The statement was _________________________ to a third party who understood its

defamatory nature; and

o _________________________ to the plaintiff’s reputation results.

B. Defamatory Language

• Language that diminishes respect, esteem, or _________________________ toward the

plaintiff, or _________________________ others from associating with the plaintiff

• Falsity—defamatory statements must be false in order to be actionable

• An _________________________ is not actionable as defamation. An opinion that implies a

basis in fact is.

Example 87: If the defendant said, “In my opinion, John Jones is a terrible

artist,” cannot be the basis for a defamation action because people can

disagree regarding the quality of an artist’s paintings.

Example 88: The statement, “In my opinion, John Jones is a thief,” could be

regarded as defamatory because it implies the fact that John Jones stole

something.

C. “Of or Concerning” the Plaintiff

• A reasonable person must believe that the defamatory language referred to this particular

plaintiff.

• Statements referring to a group—a member of the group can bring an action only if the group is

so small or the context is such that the matter can ___________________________________ be

understood to refer to that member.

D. Publication

• The statement must be communicated to a third party.

• A person who _________________________ a defamatory statement may be liable for

defamation.

• Federal statute provides that internet service providers and platforms are

______________________________________________ for the purposes of defamation.

E. Constitutional Requirements—constitutional limitations will depend on the type of plaintiff and the

content of the statement.

1. Types of plaintiffs

a. Public official—a person who has substantial responsibility or control over a

_________________________________ office, including a political candidate

b. Public figure

 General purpose public figure—a person of persuasive power and

_______________________________ in society

 Limited purpose public figure—a person who thrusts himself into a particular

_____________________________

c. Private individuals

2. Constitutional limitations

a. Public official/public figure—the plaintiff must prove that the person who made the

statement either _______________ that it was false or acted with _____________________

_________________________ for the truth

 Also called the “actual malice” standard

Note 17: Malice here does not mean motive, just that the defendant either

knew that the statement was false or was reckless with regard to the truth.

b. Private individual

 Matter of public concern—plaintiff must prove that the statement is _______________

and that the person who made the statement was ______________________________

with respect to the falsehood (should have known the statement was false)

 Not a matter of public concern—it is unclear whether constitutional limitations apply; a

state need not require a plaintiff to prove negligence

Exam Tip 13: In most jurisdictions, a plaintiff must show that the defendant

was at least negligent as to the falsity of the statement.

F. Libel and Slander

• Libel—a written, _________________________, or recorded statement (including TV/radio

broadcasts, e-mail, and electronic communications)

• Slander—a statement that is ______________________________

• Damages:

o Libel—plaintiff may recover _________________________ damages (i.e., recovery without

____________________ of measurable harm)

o Slander—the plaintiff must prove _________________________ damages (requires a

showing of economic loss); exceptions include statements communicating slander per se:

 Commission of a serious _________________________

 Unfitness for a trade or profession

 Having a loathsome _________________________

 Severe _________________________ misconduct

G. Constitutional Limitations on Damages

1. Private individual and matter of public concern—plaintiff can recover only _________________

damages unless she shows __________________________________________________

2. Private individual but NOT a matter of public concern—plaintiff may recover

_________________________ damages, including presumed damages, without proving actual

malice.

CHAPTER 19: DEFENSES TO DEFAMATION; PRIVACY TORTS

A. Defenses to Defamation

1. Truth—absolute defense; a truthful statement cannot be ___________________ as defamation.

2. Consent—if you consent to the defamation, you cannot sue.

3. Privileges

a. Absolute privileges—the speaker is completely ___________________ from liability for

defamation; includes statements made:

 In the course of judicial proceedings;

 In the course of _________________________________ proceedings;

 Between _________________________; and

 In required publications by radio and TV (e.g., statements by a political candidate that a

station must carry and may not censor)

b. Conditional privilege—the statement is made in ___________________________ pursuant

to some duty or responsibility; includes statements made:

 In the interest of the defendant (e.g., defending your reputation);

 In the interest of the recipient of the statement; or

 Affecting some important public interest

Example 89: Your company is about to hire someone. You tell the HR

department that you think the potential candidate has embezzled money from

another company. If your statement turns out to be false, you may be protected

by the conditional privilege.

B. Invasion of Privacy

• Right of privacy applies to _________________________, not ____________________________

• Typically terminates upon the _________________ of the plaintiff

• Invasion of privacy includes __________________ separate causes of action

Note 18: Remember: I FLAP (Intrusion, False Light, Appropriation, Private facts)

1. Intrusion Upon Seclusion—defendant intrudes upon the plaintiff’s private affairs, in a manner

that is objectionable to a __________________________________ person

Example 90: Phone tapping; hacking into medical records; peeping Toms

2. False Light—defendant (1) makes public facts about the plaintiff, (2) that place the plaintiff in a

false light, (3) which would be highly _____________________________ to a reasonable person

Example 91: Writing a story about one person and including a mug shot of

someone else.

3. Appropriation of the Right to Publicity—a property-like cause of action when someone (1)

appropriates another’s _______________ or _________________________ (2) for the

defendant’s advantage (3) without _________________________, and (4) causes injury

Note 19: The appropriation must be exploitative, but it need not be commercial.

Example 92: Utilizing someone’s voice in a commercial

4. Public Disclosure of Private Facts

o (1) Defendant ________________________________ a matter concerning the private life of

another; and

o (2) The matter publicized:

 (a) Is __________________________________________________ to a reasonable

person; and

 (b) Is not of _______________________________ concern to the public.

o This tort is difficult to prove because courts broadly define “legitimate public concern”

5. Damages—plaintiff need not prove special damages; emotional or mental distress is sufficient

6. Defenses

o Qualified and absolute privilege—applicable to “false light” and “public disclosure” claims

o Consent—applicable to invasion of privacy torts

o Truth—NOT a defense to privacy torts, as opposed to defamation

CHAPTER 20: MISREPRESENTATION AND BUSINESS TORTS

A. Intentional Misrepresentation (Fraud)—established by proof of the following six elements:

1. False Representation

o Must be about a _________________________ fact

o Can involve deceptive or misleading statements

o Can arise through _________________________ a material fact

o Generally, no duty to _____________________ material facts to other parties; may be an

affirmative duty if:

 There is a _________________________ relationship;

 The other party is likely to be misled by statements the defendant made earlier; or

 The defendant is aware that the other party is _________________________ about the

basic facts of the transaction, and custom suggests that disclosure should be made.

2. Scienter—defendant ____________________ that the representation is false or acted with

______________________________________________________ for its falsehood

3. Intent—defendant must intend to _______________ the plaintiff to act in

_____________________________ on the misrepresentation

4. Causation—the misrepresentation must have caused the plaintiff to act or refrain from acting

5. Justifiable Reliance—reliance is NOT justifiable if the facts are ___________________________

false or it is clear that the defendant was stating an _________________________.

6. Damages

o Plaintiff must prove actual, economic, pecuniary loss

o _________________________ damages are NOT available.

o Most jurisdictions—recovery is the “benefit of the _________________________”: the

difference between the actual value received in the transaction and the value that would

have been received if the misrepresentation were true (contract-like damages)

o Some jurisdictions—allow only out-of-pocket losses (tort-like damages) or the cost of

conforming

Example 93: Max persuades Herman to invest in a new aquarium by knowingly

misrepresenting that all the permits have cleared. In fact, Max has not filed for

any permits. Max intended to induce Herman to rely on his false statement, and

Herman did so. Max will be liable to Herman for intentional misrepresentation.

B. Negligent Misrepresentation—failure to take due care in providing information

1. Elements

o The defendant provided _________________________ information to a plaintiff;

o As a result of the defendant’s __________________________________ in preparing the

information;

o During the course of a _________________________ or profession;

o Causing justifiable reliance; and

o The plaintiff is either:

 In a ______________________________ relationship with the defendant; or

 The plaintiff is a third party known by the defendant to be a member of the limited

group for whose benefit the information is supplied

Example 94: A defendant real estate agent knows the buyer wants a quiet

home. He says that a particular home is surrounded by peace and quiet, when

in fact an extremely noisy long-term project is taking place next door. The agent

did not know about the project but should have known with reasonable care.

2. Defenses—negligence defenses _________________________ raised

3. Damages—plaintiff can recover reliance (out-of-pocket) and _____________________________

damages if the negligent representation is proven with sufficient certainty

Exam Tip 14: Do not confuse this with the tort of negligence. Negligence

generally applies when there is physical bodily injury or damage to property.

C. Intentional Interference with Business Relations

1. Intentional Interference with a Contract

a. Elements:

 A valid _________________________ existed between the plaintiff and a third party;

 Defendant knew of the contractual relationship;

 Defendant intentionally interfered with the contract, resulting in a ________________;

and

 The breach caused damages to the plaintiff

b. Nature of the contract

 Must be a valid contract

 Cannot be terminable _________________________

c. Interference with performance other than inducing breach

 Defendant may be liable when he prevents a party from fulfilling its contractual

obligations or substantially adds to the _________________________ of performance

 Defendant’s conduct must exceed ____________________________________________

and free expression

2. Interference with a Prospective Economic Advantage

o Defendant intentionally interferes with a prospective business relationship or benefit

between the plaintiff and a third party, in the absence of a contract

o The elements are the same as for intentional interference with a contract (without the

contract), but the conduct must be _________________________.

3. Misappropriation of Trade Secrets

o Plaintiff owns information that is not _____________________________________________

(a valid trade secret);

o Plaintiff has taken reasonable precautions to protect it; and

o Defendant acquires the secret by ________________________________________________

D. Injurious Falsehoods

1. Trade Libel—need not necessarily damage the business’s reputation

o Publication;

o Of a false or _________________________ statement;

o With malice;

o Relating to the plaintiff’s title to his business, the quality of his business, or the quality of its

products; and

o Causing _________________________ damages as a result of interference with or damage

to business relationships

Example 95: You publish an article in the paper stating, “I would like to

congratulate my long-time friend and competitor who retired, closed his

business, and moved to Florida. I look forward to serving all of his customers.”

If this statement is false and damages the business, then it can be actionable.

2. Slander of Title

o Publication;

o Of a _______________ statement;

o Derogatory to the plaintiff’s title;

o With ___________________;

o Causing special damages; and

o Diminishes value in the eyes of third parties.

E. Wrongful Use of the Legal System

1. Malicious Prosecution

A person intentionally and maliciously institutes or pursues a legal action for an _____________

__________________, without _____________________________________________, and the

action is dismissed in favor of the person against whom it was brought.

2. Abuse of Process

o The defendant sets in motion a legal procedure in the proper form but has abused it to

achieve some _________________________ motive.

o Some willful act perpetrated in the use of the process that is not proper in the regular

conduct of that proceeding

Example 96: A local board of education sued a teachers’ union and

subpoenaed 87 teachers for a hearing in order to prevent the teachers from

walking a picket line during a labor dispute between the union and the board.

o The conduct must also cause damages.

[END OF HANDOUT]

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