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Flashcards in Torts Deck (195):

What is "Intent" with respect to Intentional Torts? 

When the defendant acts: 

  • with the purpose of causing the consequence; or
  • knowing the consequence is substantially certain to occur. 

Note: Consequence means the act that constitutes the tort, not the harm that followed. 


What is Transferred Intent?

When the defendant intends to commit an intentional tort against one person but instead commits:

  • different intentional tort against the same person; 
  • The same intended tort against a different personor
  • different intentional tort against a different person



The Doctrine of Transferred Intent applies to which intentional torts? 

  1. Battery
  2. Assault
  3. False Imprisonment
  4. Trespass to Land
  5. Trespass to Chattels 

(only intentional tort not applicable is IIED)


What are the elements of Battery?

  • Intentional
  • Harmful or offensive contact with the person of another;
  • Defendant causes the harmful or offensive contact; and
  • Acts with the intent to cause such contact or apprehension of such contact


Is there Battery if there is consent?

No, there is no battery if there is express or implied consent


What is harmful or offensive contact for the purposes of Battery? 

  • Harmful Contact: causes an injury, physical impairment, pain, or illnesss


  • Offensive Contact: A person of ordinary sensibilities would find contact offensive
    • Defendant might be liable if aware that victim is hyper-sensitive but acts nonetheless (this is an exception to the objective test)


In a Battery, must the plaintiff be aware of the contact?

No, the Plaintiff need not be aware of contact when it occurs. 

  • Example: unconcious medical patient is inappropriately touched by someone 


What constitutes the Plaintiff's "Person" in a Battery?

Anything that is connected to the plaintiff's person qualifies as contact with the person. 

  • Examples: A cane, clothing, leashed pet, bicycle 


What Damages are available under Battery? And, what is the Egg-Shell Plaintiff Rule? 

  1. Egg-Shell Plaintiff Rule: Defendant is not required to foresee the extent of damages to be liable for all damages 
  2. No proof of actual harm is required, the plaintiff may recover nominal damages even though no actual damage occurred (to vindicate his right to physical autonomy).
  3. Punitive damages allowed if the Defendant acted with malice or outrageously 


What are the elements of Assault? 

  • Plaintiff's reasonable apprehension
  • of an imminent 
  • harmful or offensive bodily contact
  • intentionally caused by the Defendant 
    • Words can negate intent ("If you were not such a good friend, I would punch you."). 


A Plaintiff's Apprehension under Assault must be: 

  • Must be reasonable
  • Plaintiff must be aware or have knowledge of the defendant's act
  • Actual fear is NOT required (The defendant’s apparent ability to cause harm (e.g., a “real-looking” toy gun) can be sufficient to place the plaintiff in apprehension of harm.)


Under Assualt, the threatened harmful or offensive bodily contact must be: _____.  

  • Must be without significant delay
  • Threats of future harm are not sufficient 


What Damages are available under Assault?

  • No proof of actual damages is required, can recover nominal damages
  • Can recover damages from physical harm flowing from the imminent apprehension (e.g., plaintiff suffers a heart attack). 
  • In appropriate cases, punitive damages.


What are the elements of Intentional Infliction of Emotional Distress (IIED)? 

  • Intentional or Recklessly
  • Acting with
  • Extreme or Outrageous conduct
  • that causes (substantial factor
  • Severe Emotional Distress 


How is "Extreme" or "Outrageous" conduct defined for the purposes of IIED? What are instances where Courts are more likley to find conduct or language to be extreme or outrageous? 

  • Conduct that exceeds the limits of common decency so as to be intolerable to society


  • More likely if defendent is in position of authority or influence over the plaintiff (e.g., Police Officer)
  • More likely if Plaintiff is a member of a group that has heightened sensivitivity (e.g., young children)


IIED for Conduct Directed towards Third-Party (Family Rule)

  • Conduct directed at Victim's immediate family;
  • Victim is present at the time of conduct;
  • Defendant is aware of Victim's presence. 

Note: No requirement for physical injury 


IIED for Conduct Directed towards Third-Party (Bystander Rule)

  • Bystander is present;
  • Defendant is aware of bystander's presence; and
  • Bystander suffers distress that results in bodily injury


Special Causation Rule for Bystanders claiming Severe Emotional distress

The Bystander does not need to prove (1) presence and (2) defendant's awareness if the defendant’s design or purpose was to cause severe distress to the plaintiff.


What are the elements of False Imprisonment?

  • Defendant acts intending to confine or restrain another
  • Within boundries fixed by the defendant
  • Act does indeed result in confinement;
  • Plaintiff is aware of or harmed by confinement; and
  • There are no safe means of escape 


What is the Shopkeeper's Privilege (False Imprisonment)

A shopkeeper can detain a suspected shoplifter without being considered false imprisonment 


Intent & False Imprisonment

  • What is the necessary Intent with regard to False Imprisonment? 
  • What if the confinement is due to negligence? 

  • Confinement must be done with purpose of or knowledge that confinement is certain to result from actions
  • Negligent actions leading to confinement are not False Imprisonment 


What Damages are available under False Imprisonment?

  • Proof of Actual Damages is not required. Nominal Damages may be recovered, unless the Plaintiff is not aware of the confinement. 
  • Punitive Damages may be recovered 


Defense of Express Consent to Intentional Torts

  • Are there any limits to the defense? 

Express Consent: Plaintiff by words or actions manifests a willingness to submit to the conduct 

  • Defendant's conduct cannot exceed the scope of the consent


Consent by Mistake is . . . 

Valid, unless the Defendant caused the mistake or knew of it and took advantage of it 


Consent by Fraud is . . . 

  • Invalid, if it goes to Essential matter (e.g., poison laced boxing gloves)
  • Valied if it goes to Collateral matter (e.g., boxing match winnings) 


Consent obtained under duress . . .

  • Invalid if it involves threats of physical force
  • Valid if it involves threats of economic duress 


When is the defense of Implied Consent available? 

  • A reasonable person would object, but you remain silent; or
  • When you enter into circumstances, you signal indirectly your willingness to endure certain conduct. (e.g., riding subway) 


What defenses are available for Injuries Arising out of Athletic Competitions? 

  • Implied consent to normal physical contact arising from normal course of play
  • Liable for reckless conduct (i.e., conduct outside the normal scope of the sport)


Is there Implied Consent in Emergency Situations? 

  • Consent exists for unconscious patients
  • conscious patient has the right of refusal 


How does capacity affect the defense of consent? 

Lack of capacity may undermine consent and therefore leave consent invalid 


Explain the defense of Self-Defense for Intentional Torts Involving Bodily Injury. 

  • A Person may use reasonable force
  • to defend against
  • offensive contact or bodily harm


  • Mistaken belief about threat will not invalidate defense
  • Force must be reasonably proportionate  


Explain the Duty to Retreat as it applies to Self-Defense for Intentional Torts Involving Bodily Harm

  • Minority Rule: Courts required retreat before one could deadly force 
  • Majority Rule: Stand your Ground laws 
    • Can use self-defense 
    • Not required to retreat if in a place where you are legally entitled to be (e.g., your home) 


Can the Initial Aggressor use the defense of self-defense to an intentional tort involving bodily harm?

  • No, the initial aggressor is not entitled to use Self-Defense as a defense to an intentional tort involving bodily harm
  • Exception when:
    • The other party has responded to non-deadly force with deadly force


Is the person claiming self-defense as a defense for intentional torts involving bodily harm liable for injuries to bystanders?

No, as long as the injuries were accidental and the actor was behaving reasonably (i.e., not negligently). 


What is the rule when Self-Defense is invoked as a defense to an intentional tort involving bodily harm, when the self-defense is used in the defense of others?

You are allowed use reasonable force in defense of others, upon a reasonable belief that:

  1. Third Party is entitled to self-defense
  2. Third Party is in danger 


When may a person use reasonable force to defend property? 

Reasonable force may be used if the person reasonably believes it is necessary to prevent tortious harm to the property

  • Exception: Trespasser is acting under necessity 
  • Condition: Must request trespasser to leave first, unless such a request would be useless. 


Can a person use deadly force in defense of property?

  • Deadly force may not be used 
  • A person may never use deadly mechanical devices to defend property (e.g., loaded shotgun)


What type of force may be used to recapture chattels?

  • Wrongfully Taken Personal Property: Reasonable force may be used 
  • Not Wrongfully Taken Personal Property: (e.g., bailment) Only peaceful means may be used (e.g., legal proceeding)


What type of force may used to regain possession of land?

  • Common Law: Reasonable force permitted
  • Modern Rule: Use of force no longer permitted because legal means are available


Is there a defense available when disciplining a child?

Parental Discipline: Parents may use reasonable force or impose reasonable confinement as necessary to discipline their child. 

  • Factors to take into account:
    • Age of child
    • Gravity of the situation 
  • Educator's have similar privilege, unless the parent restricts it


When is a private citizen permitted to use force to arrest in the case of a felony?

  • Permitted to use force in case of felony if:
    • felony has actually been committed and 
    • reasonable grounds to suspect that the person being arrested has committed the felony 


  • Mistake as to felony: impermissible
  • Mistake as to identity: permissible 


What is required when the police exercise their privilege of arrest in the case of a felony? 

  • Must reasonably believe a felony has been committed and that the person arrested committed it. 
  • Not subject to tort liability if mistake is made as to commission of felony 


When does a private citizen have a privilege of arrest in the case of misdemeanors? 

Arrest may only be made if there is a "breach of the peace" in the presence of the private citizen. 


What are the Elements of Trespass to Chattels

  • Intentional interference with 
  • plaintiff's right to chattels by:
    • dispossessing the plaintiff; or
    • using or intermeddeling with the plaintiff's use of the chattel 
  • Plaintiff must show actual harm or dispossession for substantial period of time 


When/How is intent satisfied with respect to trespass to chattels?

  • Defendant must only have intent to do interfering act (not the interference) 
  • Mistake about the legality of the action is not a defense (e.g., taking a cpu by mistake) 


What damages may the plaintiff recover in a cause of action for trespass to chattels?

  • Where there has been Dispossession:
    • Actual damages caused 
    • Loss of use of goods
  • Where there has been Use or Intermeddling
    • Actual damages
    • Diminution in Value 
    • Cost of Repair 


Elements of Conversion

  • Same as Trespass to Chattels plus
  • Interferance deprives plaintiff of
  • entire use of the chattel 


Note: Only physical personal property can be converted 


What damages are available to the plaintiff in a cause of action for Conversion? 

  • The full value at the time of conversion 
  • Action for Replevin
    • Alternative to damages
    • If acquisition was not wrongful -- must first demand return of chattel 


Elements of Trespass to Land

  • Intentional 
  • Physical invasion
  • of someone's land 


When has there been a physical invasion in a cause of action for trespass to land?

When there has been a: 

  • Failure to leave after expiration of lawful right of entry
  • Need not personally physically enter the land (e.g., throwing a rock suffices as a physical invasion)


What damages are available to the plaintiff in a cause of action for Trespass to Land?

  • Proof of actual damages not required
  • Can recover nominal damages 


When is the general defense of necessity available as a defense to a trespass to land, chattel, or conversion?

When the trespass was to: 

  • To prevent an injury
  • To prevent another severe harm 


What is a private necessity defense to trespass?

  • To protect self (own life) or own more valuable personal property 
  • Incomplete privilege - defendant must pay for actual damages caused (e.g., docking boat during a storm that damages property) 
  • Plaintiff cannot recover nominal or punitive damages 


What is a public necessity defense to trespass? 

  • To protect a large number of people from public calamities (e.g., war) 
  • Absolute Privilege: No actual damages available if acting reasonably 


Elements of Private Nuisance

  • Substantial activity 
  • that unreasonably intereferes with another's
  • use and enjoyment of land


The nature of the defendant's conduct can be:

Can be:

  • Intentional
  • Negligent
  • Reckless; or 
  • Result of abnormally dangerous activity 


When is an interference unreasonable? 

  • If the conduct that interferes with the use and enjoyment of land is unintentional, plaintiff must show that the conduct was negligent.
  • If the conduct that interferes with the use and enjoyment of the land is intentional, plaintiff must show that the conduct is more than the plaintiff should have to bear


Historically, courts have refused to find the blocking of sunlight or the obstruction of views to be a nuisance, except when:

When a person puts up a fence with no purpose except to block their neighbor's view or sunlight, then courts may find nuisance (the spite fence rule)


What defenses are available to the defendant in a cause of action for private nuisance?

  • If defendant's condcut was negligent, then traditional defenses to negligence may apply: assumption of the risk or comparative negligence
  • Compliance with state or local administrative regulation is not a complete defense
  • Coming to the Nuisance - not a complete defense, just a factor to be considered 


Elements of Public Nuisance

  • Unreasonable interference 
  • with a right common
  • to the general public; and
  • special harm: plaintiff has been harmed in a special or distinct way than public 


What are the Remedies for Nuisances in General

  • Injunction - reluctant when value of activity is great compared to harm 


  • Damages for harm suffered or permanent damages 


When may a person abate a private nuisance?

  • A person may abate the private nuisance upon entering another's land after providing notice to defendant and defendant refuses to act
  • Amount of force used to abate must be reasonable 


What is the alternative definition of negligence?

The failure to exercise the care that a reasonable person in that situation would exercise and acting in a way that breaches the duty to prevent foreseeable risks of harm to others and the unreasonable breach of the duty must be the cause of the plaintiff's harm


Elements of Negligence

  • There exists a Duty 
  • Breach of Duty
  • Causation 
    • But-for
    • Proximate Cause
  • Harm 


To whom is a duty owed under negligence?

  • Duty owed to all forseeable persons who may be injured by the defendant's failure to follow a reasonable standard of care


Who are the foreseeable persons to whom a duty is owed to by the defendant? 

  • Majority view: Duty of care owed to plaintiff only if plaintiff is a member of the class of persons who might be foreseeable harmed by the conduct. (zone of foreseeable harm)
  • Minority view: Duty owed to anyone who may be harmed by negligence 


What duty is owed to rescuers?

The rescuer is a foreseeable plaintiff and is owed a duty of reasonable care by the Defendant 


What is the firefighter's rule?

Certain emergency personnel (e.g., police officers and firefighters) may be barred from recovering damages for injuries caused by the defendant's negligence. 


Generally, there is no duty to act affirmatively, but an affirmative duty to act exists where there is: 

  1. An Assumption of Duty (volunteer rescue)
  2. Placing another in danger 
  3. By authority (e.g., person with the ability to control another has a duty to exercise reasonable care) 
  4. By relationship (e.g., common carrier-passenger) 


What is the Standard of Care for which Mentally Disabled Persons must act? 

Standard of someone with ordinary intellgence and knowledge (i.e., no exception or limited standard for mentally disabled individuals) 


How are a person's particular physical characteristics taken into account when determining the standard of care that they must exercise? 

A person's particular physical characteristics will be taken into account (e.g., blindness or deafness).


What is the Standard of Care to which intoxicated people are held? 

The same standard as sober people, unless intoxication was involuntary. 


What is the standard of care to which Children are held? 

  • General Rule: What would a reasonably prudent child of that age do? 
  • Exception: Children engaged in adult activities
  • Children less than 5 yrs old incapable of negligent conduct 


How is custom treated with respect to the standard of care offered in a claim of negligence? 

  • It is treated as probative evidence
  • But is not a complete defense to the negligent act 


What factors are taken into account in the cost-benefit approach to determining the standard of care? 

  1. The foreseeable likelihood that the defendant’s conduct would cause harm;
  2. The foreseeable severity of any resulting harm; and
  3. The defendant’s burdens (costs or other disadvantages) in avoiding the harm. (precautions that should have been taken). 


What is the standard of care that must be exhibited by professionals? 

Professionals are expected to exhibit same skill and knowledge as another practitioner in the same community  


What is the standard of care that must be exercised by physicians?  What affirmative act does that standard of care include? 

  • Traditional Rule: community approach 
  • Modern Rule: national approach 
  • Must provide Informed Consent
    • Requirement: Must explain risks of medical procedures 
    • Exceptions
      1. Risks commonly known
      2. Patient is unconcious 
      3. Patient waives
      4. Patient is incompetent or harmed by disclosure


Elements of Negligence Per Se 

  • Statute will establish standard of care 
  • Plaintiff must be in class of people intended to be protected 
  • Statute must intend to protect against type of harm caused
  • Harm caused violation of statute 

Example: Speed Limit Laws 


What is a Defense to Negligence Per Se

  • Compliance was impossible or emergency justified violation of the statute 
  • Defendant must show that complying with the statute would be even more dangerous than violating the statute


What is the Standard of Care that must be exercised by Innkeepers and Common-Carriers?

  • Traditional Rule: Highest duty of care owed
  • Majority Rule: 
    • Common Carrier - Highest duty of care
    • Innkeepers - Ordinary negligence 
  • Both have a Duty to Act Affirmatively with respect to customers (By Relationship exception)


What is the Standard of Care that must be exercised by automobile drivers? 

  • Traditional Rule:
    • Guest Statutes - limited liability to passengers
    • Guests and Friends - only if driver was reckless, grossly negligent, wanton, or willful misconduct
  • Majority Rule:
    • Negligence standard is applied to all (reasonable person) 


What is the Standard of Care that must be exercised bailors (owner) and bailees (e.g., valet)? 


  • If Paid - known or should have known defects must be disclosed 
  • If Not Paid - known defects only


  • No benefit - gross negligence
  • Sale benefit - extraordinary 
  • Mutual benefit - reasonable care 


What is the modern trend regarding standard of care owed by bailors and bailees? 

Reasonable person standard 


What is the standard of care that a land owner must exercise with regard to discovered trespassers?


Note: easement holders or licensee must excercise reasonable care

  • Must warn or protect them from concealed, dangerous, artificial conditions.
  • No duty to warn from natural conditions or artificial conditions that do not cause the risk of death 


What is the standard of care owed to undiscovered trespassers by the land owner?

Land possessors generally owe no duty to undiscovered trespassers, nor do they have a duty to inspect their property for evidence of trespassers


A possessor of land may be liable to injuries to _____ trespassing on the land if: 

  • Protected group: children
  1. Artificial condition exists which owner knows or has reason to know that children are likely to trespass
  2. Knows or has reason to know condition poses an unreasonable risk of death or serious bodily injury to chidlren 
  3. Children do not discover or appreciate dange
  4. Low utility
  5. Owner failed to excercise reasonable care 


What is the standard of care owed to licensees by the land owner? Note a licensee is somone who comes on your land for a social purpose. 

  • Traditional Rule: Duty to correct or warn of concealed dangers 
    • No duty to inspect for dangers
    • Must exercise reasonable care in conducting activities on the land 
  • Majority Rule: Duty of reasonable care 


What is the standard of care owed to invitees by land owners? Note an invitee is someone who comes onto the land for your purpose (e.g., a customer in your business). 

  • Traditional/Modern Rule: Duty of reasonable care 
  • Non-delegable duty 

Exception: When there is Recreational Land Use with a Fee charged, the land owner is liable for only willful, malicious acts




What is the the landlord liable for? 

Landlord is liable for:

  1. Injuries in common areas
  2. Injuries from unwarned hidden dangers
  3. Injuries from premises leased for public use
  4. Injuries from a hazard the landlord has agreed to repair 


A landowner is generally not liable for injuries resulting from natural conditions, except for: ________. 

With regard to artificial condition, the landowner must: 

Exception: Trees in urban areas 

Artificial Conditions: Must prevent unreasonable risk of harm to persons not on the premises. 


What is the standard of care owed by sellers of real property to buyers?

The seller has a duty to disclose to buyers concealed and unreasonably dangerous conditions known to the seller. 

The duty continues until the buyer has a reasonable opportunity to discover and remedy the defect. 


Elements of Res Ipsa Loquitur 


Note: only available when no direct evidence is available 

  • Accident was of a kind that usually does not occur in absence of Negligence;
  • Caused by an agent or instrumentality within defendant's exclusive control; and 
  • Not plaintiff's fault


Name 2 Situations where Res Ipsa Loquitur is applied:

  1. Medical Malpractice cases
  2. Product Liability cases


The "But-For" Test

  • Injury would not have occured "but for" the defendant's negligence 


Concurrent Tortfeasors Contributing to an Individual Injury: When the tortious acts of two or more defendants are each a factual cause of one harm, then _________. 

  • Joint and Several Liability will apply
    • Both defendant are liable
    • Plaintiff can sue either defendent for entire harm


When the plaintiff's harm was caused by only one of a few defendants (usually two) and it cannot be determined which one caused the harm, the courts will _____________. 

  • Courts will shift the burden of proof to defendants and impose joint and several liability unless they can show which one of them caused the harm. 


If two or more tortfeasors were acting together collectively and that causes the plaintiff's harm ______

all defendants will be joint and several liable. 



What is the Loss of Chance of Recovery Doctrine?

  • When a physician negligently reduces the plaintiff's chance of survival (which must have already been less than 50%) the plaintiff may recover for lost chance of survival. 
  • Damages: Award less (chance of survivial - lower chance of survival).


What is the majority rule for Proximate Cause?

Is the plaintiff among class of victims who might foreseeably be injured? (scope of liability)

Defendant's liability is limited to those harms that result from the risk that made the defendant's conduct tortious. 


What is the minority rule for proximate cause?

  1. Is there a natural and continuous sequence
  2. Was one a substantial factor
  3. Was there a direct connection 
  4. Was the cause likely to produce
  5. Could the defendant have foreseen the harm
  6. Was the cause too remote in time 


What is an intervening cause when discussing proximate cause?

A factual cause of the plaintiff’s harm that contributes to her harm after the defendant’s tortious act has been completed


What is a superseding cause when discussing proximated cause?

Any intervening cause that breaks the chain of proximate causation between the defendant’s tortious act and the plaintiff’s harm, thereby preventing the original defendant from being liable to the plaintiff.

  • Unforeseeable superseding causes sever the connection of liability 
    • Medical malpractice is foreseeable
    • Negligent acts are foreseeable
    • Criminal acts are unforeseeable; unless duty owed to plaintiff 


What type of damages are available under Negligence? 

  • Actual harm must be proved (unlike intentional torts)
  • Nominal damages are not available 
  • Economic loss rule - only economic losses are not recoverable 
    • ​Unless - Non-economic damages have also been proven
  • Attorney’s fees and interest from the date of damage are not recoverable
  • Punitive Damages: if defendant acted willfully, recklessly, or with malice


What must the Plaintiff do in regards to Damages under Negligence? 

Plaintiff must mitigate damages (e.g., treat a leg wound, which was caused by negligence).  

  • Does not bar recovery, it just limits the recovery


What are the types of damages are available in a personal injury cause of action?

  1. Medical and Rehab exercises (past & future)
  2. Pain and suffering (past & future)
  3. Lost income plus reduction in future earning capacity 


What type of damages are available to the Plaintiff for property damage as a result of the defendant's tortious conduct?

  1. Difference in market value before and after the injury
  2. Personal Property: cost of repairs
  3. Household Items: replacement value 


What is the Collateral-Source Rule?

  • Traditional Rule: payments to plaintiff from outside sources (medical insurance) are not credited against the liability of any tortfeasor 


  • Modern Rule: payments to plaintiff by defendant's insurer are credited against the defendant's liability


Elements of Negligent Infliction of Emotional Distress

  • Plaintiff thinks they are
  • about to suffer physical harm; and
  • suffers emotional distress that
  • manifests into bodily harm 


In order to recover for NEID, the Plaintiff must also show: 

 A plaintiff must show that he was within the “zone of danger” of the threatened physical impact. 


What is a small exception to the NEID Zone of Danger rule?

Bystander can recover for distress if the person injured is:

  • closely related to the bystander;
  • bystander is present at scene; and 
  • personally observed the accident 


In a cause of action for negligence infliction of emotional distress, when is physical injury (i.e., or bodily harm) not required? 

In cases of misinforming someone that:

  • a family member has died; or
  • the negligent mishandling of a corpse.


  1. What is a Wrongful Death suit?
  2. What Damages are available?

  1. Decedent's spouse, next of kin, or personal representative brings suit to recover losses suffered as a result of the decedent's death under actions created by state statutes. 
  2. Damages:
  • Loss of support
  • Loss of income
  • Loss of companionship/society 
  • NO pain and suffering
  • NO right of claim owed to creditors 


What is a Survival Action? 

A suit brought by the representative of the decedent's estate on behalf of the decedent that died for claims the decedent herself would have had at the time of death. 


What types of recovery for loss arising from injury to family members are available in the case of:

  • Spouses
  • Parent
  • Child

  • Spouses: loss of consortium 
  • Parent-Child: 
    • Injured child: loss of services
    • Dead child: loss of companionship 
    • Dead parent: loss of companionship (wrongful death action) 


What is a Wrongful Life cause of action?

  • Based on failure to perform a contraceptive procedure or failure to diagnose a congenital defect
  • Not permitted in most states


What is a Wrongful Birth and Wrongful Pregnancy cause of action?

  • Wrongful Birth: Failure to diagnose a defect in the unborn child
  • Wrongful Pregnancy: Failure to perform a contraceptive procedure
  • Permitted in most states


What is Respondeat Superior?

Employers are vicariously liable for the employee's torts if they occurred within the scope of employment (i.e., employee has right to control activities of the employee). 


Respondeat Superior - Rule of Detour v. Frolic

  • Detour - employer is liable 
  • Frolic - employer is not liable (not within scope of employment)

Note: comes up most often in Delivery Driver context


Is an employer liable for torts committed by independent contractors?

No, an employer is not liable for torts committed by independent contractors. 


How can you tell the difference between an employee and an independent contractor?

Analyze the following: 

  • Terms of the Agreement
  • Does the employer retain a right of control over the way the employee does that work? 


Employer may be vicariously liable for the torts of independent contractors in the following situations: 

  • Inherently dangerous activities
  • Non-delegable duties
  • Duty of an operator of premises to keep the premises safe for the public; and 
  • Duty to comply with safety statutes 


Does Vicarious Liability apply to Business Partners?

Yes, when two or more parties have a common purpose and mutual right of control, they may be liable for each other's torts that are committed within the scope of the business purpose.


What is Negligent Entrustment?

A person can be directly liable for negligently entrusting a vehicle, a gun, or a dangerous device to someone who is not in the position to care for it


Are parents vicariously liable for their children's torts?

A parent is not vicariously liable for their minor children's torts, unless:

  1. Child commits a tort while acting as an agent for the parent;
  2. State Statutes provide for the liability of parents for their children's specific acts (e.g., vandalism)
  3. Parent approves application for child to get driver's license (State Statute) 


Are parent's liable for their own negligence with respect to their children's conduct? 

Yes, a parent is under a duty to exercise reasonable care to prevent a minor child from harming a third party, provided the parent:

  • has the ability to control the child; and 
  • knows or should know of the necessity for exercising such control 


What is the "Dram Shop" Liability Rule?

When the buyer is a minor or was intoxicated at the time of sale, the Dram Shop statute will limit the liability of bars and bartenders for injuries caused when people drink too much and injury third-parties. 

  • Theory of Liability: Negligence
  • Type of Liability: Direct 


What is the Federal Tort Claims Act

  • Federal Government waives immunity in Tort Actions
  • Exceptions:
    • Certain enumerated torts (assault, battery, false imprisonment, libel, slander, misrepresentation)
    • Discretionary Functions - planning or decision making 
    • Product Liability by contractors using gov't equipment
    • Traditional governmental activities (e.g., tax collection) 


When are government officials immune from tort liability for their actions? 

  • Immunity applies if performing discretionary function, as long as those are done without malice or an improper purpose
  • No immunity for ministerial acts
  • Westfall act: the remedy against the United States under the FTCA for torts committed by federal employees precludes any personal liability on the part of a federal employee under state tort law


What is Interspousal Immunity for tortious cause of actions?

  • Traditional Rule: prevented one spouse for suing the other in a personal-injury action


  • Modern Rule: eliminated in every jurisdiction 


Are parents immune from tort liabilty for acts committed against their children?

  • Traditional Rule: parents were immune


  • Modern Rule: Courts allow liability but not for core parenting activities
    • Examples of when liability is possible:
      • automobile accidents
      • sexual abuse
      • intentional torts
      • dual capacity (physician is parent) 


What is Joint and Several Liability

  • When two tortfeasors, both of whom are liable, can be liable for a single harm
  • Plaintiff can collect all damages from either defendant (i.e., each defendant can be liable to plaintiff for entire amount of harm)


When does Joint and Several liability apply?

  • When the Tortious acts of two or more tortfeasors combine to produce one indivisible harm
  • Two or more tortfeasors act in concert
  • Alternative Causation applies 
  • Res ipsa loquitor in medical malpractice cases 
  • The employer and the employee are both held liable


What is Contribution in the context of Joint and Several Liability?

If one of the tortfeasors has paid more than his fair share of the damages, then that tortfeasor can sue the other tortfeasor for contribution. 

  • a party who has committed an intentional tort may not seek contribution from another tortfeasor


What is Pure Several Liability?

Each tortfeasor is only liable for his own share of the harm. 


What happens when there is an Indemnification?

  • Shifts entire lawsuit from one party to the other 
  • Generally applicable under vicarious liability 
  • Available when:
    • Prior agreement between the parties
    • Equitable Indemnification
    • Significant additional harm caused by another tortfeasor; or
    • Strict Liability - seller to supplier indemnification 
  • Comparative Negligence jurisdiction have banned indemnification 


What is Contributory Negligence?

Plaintiff's failure to exercise due care (i.e., contributory negligence) would eliminate any chance of recovery


What is the Last Clear Chance Doctrine, under contributory-negligence rules? 

If the defendant had a last clear chance to avoid the harm but failed to do so, then the plaintiff could still recover. 

  • Helpless Plaintiff:
    • Defendant is liable if he knew or should of known that plaintiff was helpless 
  • Inattentive Plaintiff
    • Defendant is liable only if he had actual knowledge of the peril


What is Pure Comparative Negligence? 

(holding rule on exam)

Plaintiff's damages are reduced by the extent to which the plaintiff contributed to the harm. 


What is Modified Comparative Negligence?

  • If Plaintiff is less at fault: recovery is reduced by percentage of fault 
  • If Plaintiff is more at fault: plaintiff cannot recover
  • Plaintiff and Defendant equally at fault: plaintiff can recover half of total damages
    • Minority Rule: plaintiff cannot recover 


What is Imputed Contributory Negligence?

  • When another person's fault is "imputed" to the plaintiff to prevent or limit the plaintiff's recovery due to the other person's fault. 
  • Does not apply when:
    • Spouse v. Third Party (contributory negligent: spouse)
    • Child v. Third Party (contributory negligent: parent)
    • Automobile passenger v. Third Party (contributory negligent: driver)
    • Automobile Owner v. Defendant Driver (contributory negligent: driver of owner's car)


What is Assumption of Risk

Plaintiff has knowingly/willingly accepted a risk of harm.

  • Contributory: total bar to recovery
  • Comparative: reduces recovery 


Which parties cannot disclaim liability for negligence? 

  • Common carriers
  • Innkeepers
  • Employers 


In general parties can disclaim liability on negligence, but courts will not enforce the following exculpatory clauses: 

  • For reckless, wanton, or gross negligence
  • When there gross disparity of bargaining power between two parties
  • When the party seeking to enforce the provision offers services of great important to the public (e.g., medical services); or
  • When the provision is subject to contract defenses


What are the three categories of Strict Liability?

  • D - abnormally dangerous activities
  • A - wild animals
  • D - defective products 


What are the factors in determining whether an activity is an Abnormally Dangerous Activities

  • Whether it creates a foreseeable and highly significant risk of physical harm even when due care (reasonable care) is exercised
  • Gravity of harm resulting from the activity
  • Whether the activity is uncommon
  • If activity has great value to community and appropriate to the location 


What is the limitation on the scope of liability extending from Strict Liability situations?

The defendant is strictly liable for only strictly liable for the harm that flows from the risk that made the activity abnormally dangerous 

  • Defendant's liability can be cut-off by superseding causes


What is a Dog Bite Statute?

Strictly liable for dog bites if owner:

  • Knows; or
  • had reason to know 

of dog's dangerous propensities


What is a wild animal?

A species or class is not by customer devoted to the service of mankind in the place where he is being kept. 


Is a defendant liable for a plaintiff's fearful reaction to their wild animal? 

Yes, Strict liability applies to an injury caused by a plaintiff’s fearful reaction to the sight of an unrestrained wild animal, in addition to injuries caused directly by the wild animal.


What type of damage are owners of any animal (wild or domestic) responsible for when their animal trespasses? 


Are household pets also liable for damage caused during trespass? 

  • Owners of any animal are strictly liable for reasonably foreseeable damage caused by animal's trespassing 


  • Household pet exception: owner must know or have reason to know of trespass in a way that has a tendency to cause substantial harm.  


What types of defenses are available for the defendant in wild animal cases?

  • Comparative Fault: reduce recovery
  • Contributory Negligence: will not bar recovery 
  • Assumption of Risk: if the plaintiff is aware of the dangerous propensity of an animal and taunts the animal, he may be prohibited from recovering. 


What defenses are available for Strict Liability?

  • Contributory Negligence is not a defense
  • Comparative Negligence -
    • No reduction (majority)
    • Reduction (minority)
  • Assumption of Risk is a complete bar on recovery 
  • Party performing an essential public service is exempt from strict liability 


If a product is defective, there are three kinds of lawsuits that can be brough, in a negligence suit - the plaintiff must prove:

That the particular defendant was negligent, not just that the product was defective. 


Who may be liable in a stricts products liability case (i.e., who are the potential defendants)?

  • Seller (retailer)
  • Distributor 
  • Manufacturer 

Anyone in the business of selling (e.g., casual seller or auctioneer is not liable). 


Elements of Strict Products Liability

  • Product was defective
  • Defect existed at time of defendant's control; and
  • Defect caused the plaintiff's injury, when used in intended or reasonably foreseeable way 


What is a manufacturing defect? 

When the product deviates from what the manufacturer intended. 

TEST: Does the product conform to the defendant's own specifications? 


What is a design defect?

  • Consumer expectation test: product is defective in design if it is less safe than contemplated by ordinary consumer


  • Risk-Utility test: product is defective in design if it could have been made safer by additional features 


What is a failure to warn?

  • When the warning is important because you cannot change the design of the product without making the product ineffective
    • ex: prescription drugs


What is the Learned intermediary rule as it applies to the Failure to Warn?

  • Manufacturer does not have a duty to warn
  • consumer directly, but satisfies the duty 
  • by warning the doctor who prescribes the drug

Exception: manufacturer is aware that the drug will be given directly without personal intervention of doctors or health-care providers


What type of damages are recoverable in a strict products liability cause of action?

  • Personal injury
  • Property damage
  • Claims for purely economic losses are not recoverable and must be recovered under breach of warranty


In a comparative fault jurisdiction, what does the plaintiff's own negligence do to his or her damages in a strict products liability cause of action? 

Plaintiff's own negligence reduces recovery in strict products liability action 


If the plaintiff misuses or modifies the product, her damages, under a strict products liability cause of action, will be:

  • Comparative Fault jurisdiction
  • Contributory Negligence jurisdiction 

  • Comparative fault: Reduced 
  • Contributory negligence: If the misuse is unforeseeable, recovery will be barred. 


When is contributory negligence available as a defense in a strict products liability cause of action?

  • Not defense when plaintiff is negligent in failing to discover the defect 
  • It is a defense when plaintiff unreasonably proceeds in face of a known defect 


Does assumption of risk bar recovery in a strict products liability cause of action? 

  • In a Contributory Neglience jurisidiction is a Complete bar to recovery. 
  • In a Comparative Fault jurisdiction it is partial bar to proportionate degree of fault 


What if there was a substantial change in the product between the time it is distributed by the manufacturer and the time it reaches the consumer?

A substantial change is a superseding cause that cuts off liability


What is the effect of Compliance with Federal Government Standards in a strict products liability cause of action?

  • Not conclusive evidence that the product is not defective
  • Compliance with a federal safety standard may preempt a state tort claim if it is preempted. 


In a case alleging failure to warn or design defect, the manufacturer can introduce evidence about the level of scientific and technical knowlege at the time the product was manufactured or distributed.  What is the effect of this evidence? 

It is only relevant evidence, not a complete defense. (in some jurisdictions it is a complete defense). 


Can a manufacturer disclaim liability for the implied warranty of merchantability?

Manufacturers cannot disclaim liability for the implied warranty of merchantability as it runs to damages for personal injury in the case of consumer goods


Elements of Defamation

  • Defendant made a defamatory, false statement
  • That is of or concerning the plaintiff
  • Statement is published to a third party who understands the defamtory nature; and
  • damaged the plaintiff's reputation 


What is defamatory language?

Language that diminishes respect, esteem, or goodwill towards the plaintiff or deters others from associating with the plaintiff 


What does it mean for a defamatory statement to be "of or concerning" the plaintiff?

  • A reasonable person must believe the defamatory language referred to this particular plaintiff and holds him up to scorn/ridicule in eyes of substantial number of respectable members of the community
  • Defamatory statement re: a Group - member of a group can only bring an action if the group is so small that the matter can reasonably be understood to refer to that member


What does it mean for a defamatory statement to be published? 

  • Must be published to a third-party who understood the content 
  • A person who repeats a defamatory statement may be liable for defamation
  • Internet service providers are not publishers for purposes 


Are opinions actionable as defamation? 

Opinions can be actionable as defamation if the person who states the opinion implies that they have objective facts to support it


Constitutional Limits on defamatory statements vary by (i) who is the plaintiff and (ii) what is the nature of the statement. 

  • Public Official
  • Public Figure
  • Private Individual
    • Matter of Public Concern
    • Not a Matter of Public Concern 

  • Public Official - Must show statement made with actual malice
  • Public Figure - Must show statement made with actual malice
  • Private Individual -
    • Matter of Public Concern - negligence 
    • Not a matter of Public Concern - no constitutional limit 


What is Libel?

Defamation that is written, printed, or otherwise recorded in a permanent form.

  • TV and radio broadcasts 
  • Plaintiff must only prove general damages 


What is Libel per quod?

If the libel is not libelous on its face and requires additional facts to show why it is defamatory, then there are limits on the plaintiff's damages and must show special damages or slander per se


  • What is slander? 


  • Slander Per Se
    • Plaintiff committed __________________ or ___________. 
    • Plaintiff is ______________. 
    • Plaintiff has _____________.
    • Plaintiff has committed ___________. 

  • Defamation by spoken word or gesture 
  • Plaintiff must show:
    • Special damages or must show concrete harm
    • Slander per se 
      • Plaintiff committed a serious crime or crime of moral turpitude
      • Plaintiff is unfit for trade or business
      • Plaintiff has a loathsome disease
      • Plaintiff has committed severe sexual misconduct 


What Damages are available for Libel and Slander

  • Public Official or Public Figure - actual damages
  • Private Individual:
    • Public Concern - actual damages 
    • Not Public Concern - general damages 


What are some Defenses to Defamation? 

  • Truth (absolute defense)
  • Consent to defamation 
  • Absolute privileges
  • Conditional privileges 


What are the privilege defenses specifically in a defamation cause of action? 

  • Absolute Privilege - for statements made:
    • in the course of judicial proceedings
    • in the course of legislative proceedings
    • between a husband and wife; and
    • in required publications by radio and TV 
  • Conditional Privilege:
    • in the interest of the defendant 
    • in the interest of the recipient
    • affecting some important public interest


What are the four causes of action that may be brought for invasion of privacy? 

  • I - Unreasonable Intrustion upon the plaintiff's private affairs
  • F L - False light
  • A - Misappropriation  of the right to publicity
  • P - Public disclosure of private facts 


What is Misappropriation of the right of publicity?

Plaintiff has the right to decide if somone can use their name, likeness, or identity for commercial purposes. 


  • Unauthorized appropriation
  • for their own advantage
  • without consent; and
  • harm 


What is unreasonable intrustion upon the Plaintiff's private affairs?

Defendant's intrusion upon the plaintiff's private affairs, solitude, or seclusion in a manner that is objectionable to a reasonable person


What is False Light as a cause of action as invasion of privacy?

  • Defendant made public facts about the plaintiff
  • Plaintiff is in false light
  • False light is highly offensive to a reasonable person 


What is Public Disclosure of Private Facts as a cause of action under the tort of invasion of privacy?

Defendant gives publicity to a matter concerning the private life of another and the matter publicized is highly offensive to a reasonable person, and not of legitimate concern to the public 


What are the Elements of Intentional Misrepresentation 

  • Must be about a material fact
  • deceptive or misleading statements
  • can arise through concealing a material fact
  • no duty to disclose material facts, unless
    • fiduciary relationship 
    • other party is likely to be misled by statements 
    • defendant is aware of mistaken belief and custom suggests that disclosure should be made


Elements of Negligent Misrepresentation


When is this cause of action available?

  • Defendant (usually an accounting firm or supplier of commercial info)
  • provides false information
  • as a result of negligent preparation of information


This cause of action is only available if there is either a:

  • Contractual relationship between the parties or
  • Plaintiff is a 3d party to be a member of the limited group for whose benefit the info is supplied and info was relied upon. 


Elements of Intentional Interference with Contract

  • Defendant knew of contractual relationship between the plaintiff and 3d party
  • defendant intentionally interfered with the contract
  • resulting in breach; and
  • breach caused damages

Exception: interference can be justified if motivated by considerations of health, public safety, or public morals 


Elements of misappropriation of trade secrets

  • Plaintiff owns a valid trade secret that is not generally known;
  • Plaintiff has taken reasonable precautions to protect it; and
  • Defendant has taken the secrety by inappropriate means 


Elements of Trade Libel

  • Publication
  • of a derogatory statement
  • related to the quality of the plaintiff's business or products; 
  • that damages the business relationships 


Elements of Slander of Title

  • Publication 
  • of a false statement
  • derogatory to the plaintiff's title
  • with malice
  • causing special damages 
  • diminishes value in the eyes of third parties 


Elements of Malicious Prosecution

  • Person intentionally and maliciously institutes or pursues legal action for an improper purpose without
  • probable cause 
  • and the action is dismissed in favor of the person against whom it was brought

Prosecutors enjoy absolute immunity to this tort


Elements of Abuse of Process

  • Defendant has set in motion a legal procedure in proper form; but
  • has abused it to achieve some ulterior motive 
  • some willful act perpretrated in the use of the process which is not propert in the regular conduct of that proceeding; 
  • conduct caused damages


Under Assault, what is the status of mere words? 

Words coupled with conduct or other circumstances may be sufficient.  (Example: If the defendant sneaks up behind the plaintiff in a dark alley and utters in a menacing voice, “Your money or your life,” then an assault may be complete.). 


  • What burden of proof/standard must the plaintiff show to collect damages under IIED?
  • Can the defendant be liable for severe distress experienced by hypersensitive plaintiffs? 

  • Burden of proof for damage award: severe emotional distress beyond what a reasonable person could endure


  • The defendant is not liable for unreasonable severe emotional distress experienced by hypersensitive plaintiffs, unless the defendant actual knew that the plaintiff was hypersensitive.