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Flashcards in Torts: Arkansas Judges Lecture Deck (321):

Judges way to look at it

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Torts (and their defenses) can be classified according to:

1. The nature of the interests invaded.

2. The mental state of the actor.

3. The quality of the actor's behavior.


Three Broad Categories of Tort Liability

1. Intentional Torts

2. Negligence

3. Strict Liability

**4. Product Liability


Basic Elements of Intentional Torts

1. Wrongful Volitional Act

2. Intent

3. Cause Injury to Plaintiff


Wrongful Volitional Act

Some voluntary muscular movement or act.

Not something beyond control.



Subjective State of mind about the consequences of the act.

Types of Intent:
1. Purpose or desire to bring about consequence
2. Knows with substantial certainty.


Transferred Intent

Two Ways to prove:
1. From the intended victim to the actual victim.
2. From the intended tort to the actual tort.

**Assault, Battery, False Imprisonment, Trespass to Land/Chattel


Substantial Certainty Test

Inference from the circumstances.

Objective inquiry.


What about infancy or insanity?

No automatic bar

Jury could find that the actor is not able to form the requisite intent.



Both cause-in-fact AND proximate

**May be willing to trace chain further


Damages of Intentional Torts

Need not be proved but may be assumed


Intentional Torts

1. Assault
2. Battery
3. Intentional Infliction of Emotional Distress
4. Trespass to Land
5. Trespass to Chattel



1. harmful or offensive contact

2. Contact to the Person of another

3. Intent

4. Causation


Harmful or Offensive Contact

Harmful Contact causes bodily harm.

Offensive contact must be offensive to a reasonable person.


Does the person need to be aware of the contact?

No, you do not have to be aware at the time.


Person of Another

The body.

Things physically close to the body (clothing, pocket book, umbrella)


Battery Intent

Intent to the contact not the harm.


Battery Causation

Need not personally touch.

Can be through a chain reaction leading to the contact.


Battery Damages

Not required to prove actual damages.

Can be presumed.

Defendant can be liable for entire harm (proximate cause) whether they intended it or not.



An act intent to cause:

1. Apprehension of Contact

2. Imminent Contact

3. Causation

4. Intent (can be transferred)



Reasonable expectation of the contact.

Two Aspects:

1. Objective Aspect

2. Subjective Aspect

**Not fear


Objective Aspect of Apprehension

Act must be one that would create apprehension of an imminent battery in the mind of a reasonable person.


Subjective Aspect of Apprehension

The plaintiff must actually be aware of the threat and experience such apprehension


Imminent Contact

The apprehension created must be of contact about to occur with no significant delay, not to any contact that might occur at some time in the future.

**Verbal threats not enough, UNLESS supplemented with circumstances.

**Words can negate a threat

**Even if it couldn't happen, you look at the apprehension.


Assault Damages

Need not show to make a case.


False Imprisonment

1. Act of Confinement

2. Against the victim's will

3.Bounded Area

4. Intent

5. Causation


Act of Confinement

1. Actual force or physical restrain against plaintiff's person or property;
2. Threats of force;
3. Creation of a reasonable apprehension of force;
4. The assertion of legal authority;
5. The failure to release Plaintiff when Defendant has duty to do so.


Against the Victim's Will

Plaintiff has to be aware of the confinement.


Bounded Area

Freedom of movement is limited in all directions.

Can be big in some circumstances.

**Look if there is a reasonable means to escape.


Possible Escape Exception

1. Unreasonable harm

2. Embarrassment


Damages for False Imprisonment

Need not be shown.


Intentional Infliction of Emotional Distress

1. Extreme and outrageous Conduct

2. Intentionally or Recklessly

3. Causation

4. Infliction of Severe Distress


Extreme and Outrageous Conduct

Beyond all bounds of decency and utterly intolerable in a civilized society.

Mishandling burial of a loved one.

**Words or insults are not going to be enought

**Look for aggravated circumstances.


When will verbal abuses work?

Working in a hotel


Infliction of Severe Distress

If now knowledge of person, the distress must be what a person of ordinary sensibility would experience.


Intent for Infliction of Emotional Distress

Substantially certain to result from the conduct.

Recklessness is enough



Deliberate disregard of a high probability of emotional distress.


Trespass to Land

Intentional Physical invasion of possessory interest.

**Arises after any physical entry.


Intentional Physical Invasion

Must be a physical entry:

1. Need not personally enter land, can cause other to enter.
2. Remain on the land when there is a duty to leave.
3. Fail to remove an object when there is a duty to do so.
4. Enter on some portion of the land other that that for which permission was given.

**Make sure some act of the defendant's causes the physical invasion.


Possessory Interest

Holder of a leasehold estate, Lessee

Absentee landowner

Actual and exclusive possession.


Trespass to Land Intent

Merely intent to the consequences of the physical entry.

**Good faith mistake as to ownership, consent, or the existence of a legal privilege is no defense.


Land Described

The interest in land extends vertically and horizontally

Can be a outer walls of a fence, beneath the surface


Damages in Trespass to Land

Need not be shown.

The trespasser may be liable for all harms directly caused and conditions directly caused by the trespasser's acts on the land.


Airspace Trespass

The airspace above the property and below the FAA level is yours.

Immediate reaches (low altitudes)


Two Types of Torts for Personal Property

1. Trespass to Chattel

2. Conversion


Trespass to Chattel

1. Interference of Possessory Interest

2. Intentional Act

3. Causation

4. Damages Required


Trespass to Chattel Intent

Intent to cause the interference.



1. Tangible personal property

2. intangible personal property that is respresented by some physical object (promissorynote, documents)



1. Unpermitted used
2. Direct dispossession for more than a few moments
3. Physical damage to the propery



1. Substantial Interference of Property

2. Assertion of Dominion or Control

3. Intent

4. Causation


Substantial Interference/Assertion of Dominion Examples

1. Wrongful acquisition
2. Material Alteration or Destruction
3. Selling property
4. Relocating property.


Conversion Intent

The intent to exercise dominion and control over the chattel.


Conversion Capable Property

1. Tangible Personal Property
2. Intangible property to which a tangible object, converted by defendant, is highly important.

**Does not include good will


What about conversion and Bailees?

Innocent bailees who receive, store, or transport stolen merchandise in good faith and without notice that the goods are stole, will not be liable for conversion provided they promptly surrender the goods upon demand by the rightful owner.


Intentional Torts Defenses and Privileges

1. Consent
2. Self-Defense
3. Defense of Others
4. Defense of Property
5. Necessity
6. Arrest
7. Discipline



Negates the wrongfulness of the conduct.

Must be valid.

Two Types:
1. Express - communicated permission
2. Implied - reasonable person standard
3. Apparant - reasonable person standard
4. By operation of law


When may consent arise by operation of law?

1. The plaintiff is unconscious or lacks capacity to consent and no one is available for plaintiff;

2. Time is of the essence, such that delay will likely result in serious injury or death;

3. A reasonable person in the plaintiff's position would have consented;

4. No reason to believe the plaintiff would have refused consent.


Factors Invalidating Consent

1. The defendant exceeds the scope of the plaintiff's consent.

2. The plaintiff lacks capacity because of infancy or impairment.

3. Consent is based on duress, coercion, or fraud/mistake.

**Peripheral matters don't count (1 credit over 2 for participation)


Consent to Criminal Conduct

Consent in cases of unlawful mutual combat does not bar a battery claim.

Consent will not preclude liability if the plaintiff is a member of the class of persons protected by the violated criminal law.

**Consent is no defense to a battery claim arising out of statutory rape.



A person is justified in using reasonable force to prevent what he or she reasonably apprehends is threatened imminent, unprivileged harmful or offensive bodily contact or confinement.

1. Imminent, unprivileged harm;
2. Reasonable apprehension of harm;
3. Reasonable force
4. Not initial aggresor, unless response is unreasonable


Reasonable Apprehension

Subjectively, the defendant must really believe that an attach is in progress.

Objectively, it must be reasonable for defendant to form the belief.

**A person who reasonably but mistakenly believes an attach is in progress may claim self-defense.


Reasonable Force

Using only that amount of force reasonably necessary to avoid the threatened harm.

**match force with force


What about injury to third persons during self-defense?

A person whose actions are justified by self-defense will not be liable under an intentional tort theory to third persons inadvertently injured in the scuffle.

**Could be negligent though


Defense of Others

1. Reasonable belief the other would have right to self-defense.
2. Use of reasonable force


Defense of Property

Use of reasonable, non-deadly force to protect the property.

Look for 2 things:
1. Actor must make a demand that the other person leave it alone.
2. May never use deadly force here.


What about traps in defense of property?

Cannot use deadly force.


Recovery of Property

You can use reasonable, non-deadly force but its limited.

1. Property must be wrongfully taken from immediate possession.
- Real property needs court order
2. Actor must be in "hot pursuit"

Otherwise, you have to resort to legal remedies.



A person is justified in interfering with the property rights (but not the person) of another with it is necessary to avoid a harm (to one's self, one's property, or the public) that is substantially greater than the injury caused by the property interference.


Two Types of Necessity

1. Public
2. Private


Public Necessity

When defendant reasonably believes that action is necessary to prevent SEVERE AND IMMEDIATE HARM to the public amounting to a disaster.

Complete defense, they don't have to pay at all.


Private Necessity

When one reasonably believes that action is necessary to prevent serious and imminent harm to one's self or to a small number of people that is SUBSTANTIALLY GREATER than the harm caused by the actor's conduct.

Incomplete defense, the actor will not be liable for a technical trespass but will be held liable for any actual damages caused.


Arrest Situations

1. Police Officer/Citizen
2. Warrant/No Warrant
3. Misdemeanor/Felony


With a warrant?

Valid on its face, Police Officer has right to make arrest.


Without a warrant?

Must be:
1. Felony apparently being committed or about to be committed in the presence of the one making the arrest.
- police or public

2. Felony apparently already committed.
- police can be wrong without being held liable.
- public can be held liable if wrong



Police and private persons have the privilege to make a warrant-less arrest for a misdemeanor involving a breach of the peace being committed or about to be committed in their presence.


Shopkeeper Rules

A merchant or agent who has reasonable grounds to believe that the plaintiff has shoplifted may detain that person in a reasonable manner for a reasonable time to investigate the facts.

No deadly force.



Page 21


Negligence vs. Intentional Torts

Intentional Torts require subjective intent and focuses on acts.

Negligence isn't limited to the act and doesn't not care about what is going on in the actor's mind.


Negligence Elements

1. Whether defendant owed a duty of care to plaintiff;
2. What standard of care that duty involved;
3. Proof that the defendant breached that standard of care;
4. Whether the defendant's breach caused plaintiff's injuries;
5. Whether the plaintiff actually suffered any damages that are compensable in negligence.


Key Concepts to Keep in Mind

1. Reasonableness
2. Foreseeability

**Affirmative defenses


1. The Existence of a Duty

A duty of care is owed only to persons within the foreseeable zone of danger created by the Defendant's negligence.


Foreseeable Zone of Danger

Majority Rule: Palsgraf Case - Whether safety to plaintiff's person or property is foreseeably threatened by the defendant's activity. IT IS A QUESTION OF DUTY
-Cardoza View - did RR own a duty at all to Palsgraf, NO

Minority Rule: Proximate Cause Approach - The defendant must always take reasonable care in the conduct of the defendant's activities.


Fact Patterns to Look for

1. No duty to strangers in peril IF DEFENDANT DID NOT CREATE PERIL.

2. May not discontinue assistance in a way that it leaves the plaintiff in a worse position AND must act with reasonable care to provide whatever assistance the defendant does render.

3. Mere gratuitous promise to provide aid or services does NOT create a tort duty to perform the promise, even if plaintiff detrimentally relies on it.

4. Special Relationships giving rise to a duty.

5. Harm to Unborn Children

6. Rescuers


Special Relationships Giving Rise to a Duty

1. Relation to Plaintiff gives rise to a duty
- The defendant derives an economic benefit from the plaintiff.
- The plaintiff is under the Defendant's custody.
- The plaintiff is dependant on the defendant.

2. Relation to Actor gives rise to a duty
- Actor-prisoner is under Jailer Control
- Defendant learns that Actor intends harm to an identified or identifiable Plaintiff.


Rescuers Regards to Negligence Claims

Civilian rescuers are regarded as foreseeable plaintiffs and thus are owed a duty of reasonable care by the defendant who created the peril to which they respond.

Firefighters and Police do not have claims for injuries incurred in the course of their normal duties.

**Danger invites rescue


Reasonable Person Standard

An actor must take reasonable care in conducting his or her activities to prevent foreseeable harm to others. What is "reasonable" will depend on the involved and the practicability of preventing it.

**Used in most cases.

1. What harm is foreseeable?
2. What action would be reasonable to avoid the reasonably foreseeable risks?


Duty of Care

Decided by the Judge.


Analysis of Reasonable Care

1. Balance of risks and costs.

2. Reasonably foreseeable risks

3. Utility of the Defendant's conduct.

4. Circumstances


The Reasonable Person

Objective test.

1. The defendant's mental processes are irrelevant.
2. The defendant's mental limitations are irrelevant.
3. The defendant's major physical limitations are taken into account.
4. Ignorance doesn't matter as well.
5. Knowledge or Skill can bump up Standard of Care.


Standard of Care for Sudden Emergency

Reasonable person standard.

Defendant may request instruction to jury to take into account the stress of the emergency.

Not liable for harm caused by an unforeseeable medical emergency.


What constitutes a sudden emergency?

A sudden, unexpected, and stressful emergency not of the defendant's own making a leaving no time for deliberation, and an alternative course of action open to the defendant.


Standard of Care for "Special Danger" cases

Reasonable Person Standard

**Defendant causes an injury during some highly unusual hazard.


Standard of Care in Children

Majority Rule: A child must exercise the degree of care that a reasonable child of like age, education, intelligence, and experience would exercise under the circumstances.

Adult Standard of Care: The quasi-subjective child standards reverts back to the objective adult reasonable person standard when children engage in activities normally undertaken only by adults.


Standard of Care for Common Carriers, Innkeepers

A high degree of care and are liable for slight negligence.


Standard of Care for Bailments

The essence of the rule is that the level of care tracks the bestowal of benefit.

1. For sole benefit of bailee: Bailor must warn of dangerous defects
2. For sole of benefit of bailor: Bailee must apply slight diligence.


Standard of Care in Professional Malpractice

General Rule: A person held out as a learned professional is required to possess and exercise the KNOWLEDGE and SKILL of an ORDINARY MEMBER of that profession in good standing.


Standard of Care in Medical Malpractice

Locality Rule: a physician is held to the standard of care of an ordinary member of the medical profession in the same or a similar locality.

Informed consent needs every detail to make either decision

**most jurisdictions
**Specialists are held to national standard
**Emerging Position - national standard.


Standard of Care in Legal Malpractice

Held to what an ordinary professional in that State would do.

Not reliable for error of judgment, as long as it is one that an ordinary person would make.

Needs expert testimonty


Burden of Proof in Legal Malpractice

Was the result caused by the omission or action of malpractice.


Standard of Care in Owners and Occupiers of Land

Depends on the Plaintiff's Status:
1. Trespasser
2. Known or frequent trespasser,
3. Child trespasser,
4. Licensee
5. Invitee


Standard of Care in Owners and Occupiers: Activites v. Conditions

The special standards of care imposed on owners and occupiers of land generally apply to injuries caused by artificial conditions on the land.

**If an activity, just apply reasonable person standard.


Artificial Conditions v. Natural Condition

The owner or occupier owes no duty to person off the premises to protect from risks presented by natural conditions originating on the premises, except for hard from rotted trees in urban areas.


Standard of Care of Lessors

Traditionally, a lease was regarded as a conveyance which shifted to the lessee all duties to make the premises safe.

EXCEPT: Reasonable Care for Lessor when
1. Undisclosed latent dangers
2. Promises or undertakings to repair
3. Premises open to the public
4. Common Areas


Standard of Care of Trespassers



Duty to Undiscovered Trespasser

No duty

No traps.


Duty owed to Discovered, known, or frequent trespassers

Use reasonable ordinary care to warn of, or make safe, dangerous artificial conditions likely to cause death or serious bodily injury known to the owner or occupier and that the owner or occupier has reason to believe the trespasser will not discover.

You cannot ignore known trespassers when there is reasonably serious conditions on the land.


Duty owed to Child Trespassers

1. To anticipate the presence of child trespassers
2. To take reasonable care to make the premises safe from foreseeable risks caused by dangerous artificial conditions, which the child is unlikely to discover.

**likely to trespass, not known


Child Trespasser Likely to Arise

1. The condition is in a place where children are likely to trespass;
2. The risk is one the owner or occupier knows or should know involves an unreasonable risk of bodily harm;
3. The expense to the owner or occupier of eliminating the danger is slight compared to the risk to trespassing children.


Duty to Licensee

To use ordinary care to warn of, or make safe, known dangerous conditions that the licensee is unlikely to discover.


Who is a licensee

Someone on premises with owner 's express or implied consent for their purposes.


Duty to Invitee

A duty of reasonable care to warn or, or make safe, dangerous conditions that the owner or occupier knows or should know of and that the invitee is unlikely to discover.

1. Take reasonable measures to inspect the premises and warn of non-obvious dangers;
2. Make safe even obvious dangers that the entrant cannot avoid or when a warning otherwise would be insufficient;
3. Act reasonably to render aid if the invitee is injured or becomes ill on the premises.


Two types of Invitees

1. Business Invitee - allowed for a purpose connected to owner/occupier's business. Includes shoper, friends, browsers, official inspectors, trash collectors.

2. Public Invitee - allowed for a purpose for which the land is open to the public.


How do you prove a breach of duty?

By a preponderance of the evidence that the standard of care has not been satisfied.

Allege facts that a jury could find a breach.


Two ways to breach

1. Violation of a Statute
2. Through actions


Breach through Violation of a Statute

If the legistlature has enacted a criminal statute or ordinance dictating what must or must not be done in certain circumstances, the court may regard the violation of that statute as a breach of duty of reasonable care.


What is a breach of duty through violation of a statute?

Negligence per se


Negligence per se Requirements in Majority Rule

1. Applicability of Statute
- Plaintiff is in class meant to protect AND
- harm that occurred was intended to be protected
2. Violation of the Statute


Negligence per se Requirements in Minority Rule

Violation is a rebuttable presumption.


What if there is compliance with statute?

Evidence of reasonable care


What if there is custom?

Whether a particular practice or precaution is customarily taken (or omitted) in a community or an industry is usually _________ of whether it is reasonable to do so.


Res Ipsa Loquitur (The Things Speaks for Itself)

When direct evidence (an eyewitness) of the Defendant's negligence is lacking, the court will all the jury to infer negligence from the circumstantial evidence when the circumstances indicate that the accident more likely than not was caused by Defendant's negligence.


Elements of Res Ipsa Loquitur

1. Is the accident one that ordinarily would not have happened unless someone was negligent?

2. Is it more likely than not that the defendant's negligence caused the accident?

3. Was the accident NOT caused by the Plaintiff's own actions, or that of some other likely suspect?


Effect of Res Ipsa Loquitur

Majority: Allows the plaintiff to get the case to the jury and allows the jury to find in plaintiff's favor.



Causation of Negligence

1. Cause-in-fact

2. Proximate Cause



The Plaintiff must prove by a preponderance of the evidence that the Defendant's negligence was a cause-in-fact.

"But-For" causation


But For Analysis

Identify the aspect of the defendant's conduct that was negligent and ask whether the plaintiff would have been injured anyway.


Concurrent Causes

The plaintiff injury results from several causes, none of which alone would have been sufficient. If two individuals are the concurrent cause of the Plaintiff's injures, both will be liable.


Multiple Independent Causes

Asked which one is the substantial fact then they are liable.

**Single injury from multiple causes.

**Proved by "more likely than not"


Causation Uncertainty

Some courts allow for the case to go to jury to decide.

**Shifts burden on Defendants
**Enterprise liability - market share


Proximate Cause

**Scope of liability

Plaintiff has to show that the harm suffered resulted from risks that made the Defendant's conduct wrongful.

Mixed question of law and fact for the jury, looks more to the consequences flowing from defendant's conduct, given the existence of some duty-creating relationship.

1. The foreseeability of the kind and scope of injury
2. The directness or indirectness of the causal chain
3. The nearness or remoteness in space and time of defendant's breach to plaintiff's injury.


What if the Plaintiff gets harmed a lot worse than expected?

Personal Injury: Defendant takes the Plaintiff as they find them.

Property Damages: Liable only for property damages of a kind and to an extent that is reasonably foreseeable.
- oil in the harbor case


What if the Plaintiff is foreseeably harmed but through an unforeseeable manner?

Defendant usually will not avoid liability just because a foreseeable kind of harm occurs through unforeseeable means.

At some point, the sequence of events will become simply too attenuated for a reasonable jury to hold the defendant liable for plaintiff's injuries.


What if there are indirect and intervening causes?

1. The intentional torts and criminal wrongdoing of others ordinarily do break the chain of causation unless they are within the scope of the original risk.
2. Proximate cause will be found when the possibility of someone else's negligence is part of the risk reasonably to be guarded against.
3. Defendant will be liable if the defendant's negligence left the plaintiff in a position of peril from a second accident.
4. Intervening negligence in the rescue of the plaintiff and treatment of the injuries inflicted on the plaintiff by defendant usually does not cut the chain of causation.
5. Forces of Nature
6. Suicide


Damages of Negligence Claims

Plaintiff has to prove reasonably certain actual damages.

different from intentional torst, MUST HAVE DAMAGES


To Aspects of Damages

1. Economic Injury - not enough alone to have in a negligence claim
2. Emotional Injury - plaintiff can recover for the pain, suffering and distress that ACCOMPANY PHYSICAL INJURIES. **Look for ZONE OF DANGER.


How to get a claim under ZONE OF DANGER from the outside?

1. Family member


Special Cases Involving Emotional Distress

Get a claim for false reports of death of a close family member


Defenses of Negligence

1. Contributory Negligence


Contributory Negligence

At CL, it was a complete defense to a negligence claim that the Plaintiff's negligence contributed to the injury.


Contributory Negligence Standard of Care

Reasonable Person Standard

**Last Clear Chance buffers this



Not a defense to intentional torts

Not a defense to intentional wrongdoing; willful, wanton, or reckless misconduct; or strict liability

Last Clear Chance Buffer

Imputed Contributory Negligence


Last Clear Chance Buffer

1. Helpless peril - will apply to the Defendant who either knew or should have known of the plaintiff's peril if the plaintiff's contributory negligence put him in a position of peril from which he could not extricate himself.

2. Inattentive Peril - if the Plaintiff's peril results merely from the plaintiff's inattention, last clear chance will apply only if the Defendant knew of the Plaintiff's peril.


Imputed Contributory Negligence

The negligence of a third person will not be imputed to the plaintiff except in cases involving vicarious liability or when the plaintiff's claim is derivative of the contributory negligence of a third person.


Comparative Fault

In a comparative fault jurisdiction, the contributory negligence of the Plaintiff will not bar recover; But the negligence of the Plaintiff will be taken into account in assessing damages.


Two types of Comparative Fault

1. Pure Comparative Fault - assume unless otherwise told

2. Modified Comparative


Pure Comparative Fault

Reduce recover at the % of fault of the Plaintiff.


Modified Comparative Fault

If the Plaintiff's fault reaches a certain threshold, the Plaintiff gets nothing.

If less that threshold, subtract the amount of fault.


Modified Comparative With Multiple Defendants

Most Jurisdiction will take the Plaintiff vs. All other combined.


Limitations on Comparative Fault

Most states preclude application of comparative fault to intentional torts.


Assumption of Risk

In a contributory negligence jurisdiction, it is a COMPLETE DEFENSE to a negligence claim that Plaintiff assumed the risk of the injury.


Elements of Assumption of Risk

1. The Plaintiff actually knows of the risk;
2. The Plaintiff appreciates the magnitude of the risk;
3. The Plaintiff nevertheless voluntarily chooses to encounter the risk.


Two Ways to Manifest Assumption of Risk

1. Express

2. Implied


Effect of Adoption of Comparative Fault

In many jurisdictions, the adoption of comparative fault replaces both contributory negligence and implied assumption of risk.

Express assumption of risk typically is retained.


Limitations on Express Assumption of Risk

Public policy will preclude enforcement of an express assumption of risk agreement when:

1. There is a gross inequality of bargaining power so that the effect of the agreement is to put the plaintiff at the mercy of the defendant's negligence.

2. The exculpatory agreement involves the public interest.

3. The agreement purports to cover intentional torts, or willful, wanton, reckless, or grossly negligent conduct.


Limitations on Implied Assumption of Risk

Implied assumption of risk will not be found when:

1. The Plaintiff is a member of a class to be protected by a safety statute;
2. The Defendant's negligent violation threatens the very harm the statute was designed to prevent.


Strict Liability Dangerous Animals

Possessors of wild animals are strictly liable (i.e. liable regardless of fault) for the harm that such animals cause to others. Possessors of domestic animals are not strictly liable unless they of the animals' propensities.


Dangerous Animals: Wild

Must be normally wild.

SL does not apply to a landowner under a public duty to keep wild animals, such as a zookeeper.


Dangerous Animals: Domestic

SL applys when the owner has:
1. knowledge of dangerous propensities

SL applies to invitees or licensees

Trespassers must prove negligence.


Dangerous Animals Causation compared to liability

SL for dangerous animals is limited to liability for the risk that the makes the animal dangerous.


Strict Liability Abnormally Dangerous Activity

If an activity is determined to be "abnormally dangerous," the person engaging in the activity will be held SL for the damage caused by the activity.


Abnormally Dangerous Activity

1. It present a likely risk of serious injury to others;
2. The risk cannot be eliminated by the exercise of reasonable care;
3. The activity is inappropriate or uncommon to that area

**Does not include common activities


Scope of Duty in Abnormally Dangerous Activity

Reasonable Foreseeability


Abnormally Dangerous Activity

SL will be imposed only if the resultant harm was within in the scope of the specific risk that would justify imposition of SL.


Defenses to Abnormally Dangerous Activity

1. Comparative Fault to reduce recover.
2. Assumption of Risk

**Contributory negligence is not a defense


What about a defendant taking extroadinary precautions?

Don't pick the answer.

SL doesn't matter who careful you are.


Products Liability

Personal injury or property damage caused by a defective product.


Potential Theories of Products Liability Recovery

1. Negligence
2. Strict Products Liability
3. Breach of warranty,
4. Misrepresentation


Product Defects

1. Manufacturing Defect
2. Design Defect
3. Failure to Warn


Negligence in Products Liaiblity

1. Duty
2. Standard of Care
3. Breach
4. Damages


Who has the Duty of Care in Products Liability

1. Anyone within the chain of commercial distribution.
2. Occassional Seller, knew a failed to warn
3. Retailer, knew


Standard of Care in Products Liability

Reasonable Standard of Care


Who may bring a Negligence in Products Liability claim?

Anyone within the foreseeable zone of danger from the defective product may bring the claim.





Failure to Warn Causation

Courts will assume that had there been a warning, the Plaintiff would have read it.


Strict Products Liability

A commercial supplier who introduces into the stream of commerce a product "in a defective condition which is unreasonably dangerous" is liable for personal injury and property damage caused by the product's dangerous defect.


Who does strict product liability apply to?

Everyone in the commercial chain

1. Commercial Suppliers
2. Lessors
3. Manufactures

**Not one time sellers


Who can sue

All person in the foreseeable zone of danger


Defective Condition

Defect must be in the produce when it leaves the manufacture's control.


Manufacturing Defects

If there is an unreasonably dangerous manufacturing defect in the product that causes personal injury or property damage, everyone in the chain of distribution will be strictly liable.


Tests for Design Defects

1. Consumer Expectation Test
2. Risk-Utility Test
3. State of the Art
4. Unavoidably Unsafe


Consumer Expectation Test

Unreasonably dangerous when it is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community.


Risk-Utility Test

Defective if its reasonably foreseeable risks outweigh its utility to society, considering technologically and economically feasible alternative safer designs.


State of the Art

Defendant can rebut Plaintiffs allegation by showing that the product conformed to the safest design that was technologically feasible at the time of distribution.


Unavoidably Unsafe

Some products are very useful and in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use.


Failure to Warn in Products Liability

Manufacturers, sellers

Prescription Drugs: Courts have reason that a manufacturer who provides warning to intermediary has discharged the duty to warn.


Proof of Defect

Must prove that the defect was present (or incipient) in the product when it left defendant's control.


Causation in Strict Product Liability

Must prove cause-in-fact and proximate cause.


Damages of Strict Products Liability

Recovery for personal injury and for damage to property other than the product itself is not clearly allowed.

**Majority hold that economic loss is not recoverable under SPL


Defenses to Strict Product Liability

1. Contributory Negligence/Comparative Fault
2. Alteration
3. Misuse


Alteration Defense

There has been an UNFORESEEABLE ALTERATION of the product by someone subsequent to the Defendant in the chain of distribution.


Misuse Defense

Most courts will not hold the seller liable if the defendant can prove that Plaintiff's injuries resulted from an UNFORESEEABLE MISUSE of the product.

**Speeding is not misuse


Definition of Products

A SPL claim of course requires that the harm be cause by a product.

Extends to Real Property - mass marketed new homes
Does not extend to services.

Essence of transaction test when mixed.


Products Liability Breach of Warranty

1. Expressed
2. Implied
- fitness of merchantability
- fit for particular use
**Must provide notice of breach

UCC controls.

Implied warranties apply as well.


Products Liability Misrepresentation

A commercial supplier of products who makes a material misrepresentation concerning the nature or quality of the product is strictly liable for physical harm caused by justifiable reliance on the representation.

**Even if the representation is unrealistic.


Is contributory negligence a defense to Strict Liability?



Two Types of Nuisance

1. Private
2. Public


Private Nuisuance

Nuisance is intentional or otherwise actionable conduct that causes a with of land

**Intentional so state of mind is not really focused on.


Substantial Interference

Must be more than Trivial


Unreasonable Interference

Must be more than a reasonable person can be expected to tolerate in a crowded society.

Elements to Consider:
1. Gravity of the harm to the Plaintiff against the utility of the Defendant;
2. Amount of harm
3. The relative capacity of the Plaintiff and the Defendant to bear the loss
4. The nature of the parties' respective uses
5. The nature of the locality
6. Who began their use first.


Nature Protected in Private Nuisance

The use and enjoyment of land.

Does not require physical invasion or intent.


Remedies under Private Nuisance

1. Actual Damages
2. Injuction


Key Factors in an Action for Injunctive Relief

1. The inadequacy of the legal remedy of money damages,

2. The continuing nature of the interference;

3. The balance of the equities between the Plaintiff's and defendant's interests, and the harm to the community.


Public Nuisance

Conduct or a condition caused by the defendant that presents a harm to the public in general.

Health, safety or property


When can someone assert a public nuisance claim?

1. Plaintiff suffered harm of a kind different from that suffered by the general public.
2. While exercising the right common to the general public with which defendant interfered.

Example: dumping debris on the highway, can bring claim if property owner cannot get out of his property because of debris.


Defense to Nuisance

1. Contributory Negligence when dealing with negligence
2. Assumption of Risk


Defamation Overview

Old Common Law Claim
1st Amendment has changed it for statements:
- of public concern
- public individual


Common Law Claim of Defamation

A False Statement that:
1. Is injurious to Plaintiff's reputation;
2. Is of and concerning the plaintiff
3. Is published to a third person
4. Results in Damages to the Plaintiff



1. False
2. Injury of reputation
3. Concerning plaintiff
4. Published
5. Damages


False Statement

At common law, presumed.


Injurious to Plaintiff

Not necessary to show hatred, just lowers reputation in relation to others

Must be in the eyes of the society


How can you show defamatory impact?

If defamatory impact is not apparent that Plaintiff from the face of the statement, the Plaintiff must plead FACTS EXTRINSIC to the communication to establish its defamatory meaning. (inducement through innuendo)


"Of and concerning" the Plaintiff

The statement must be reasonably understood to be about the Plaintiff.

Whether a person acquainted with the circumstances would understand the statement to refer to the Plaintiff.

**Does not have to name person


What about "Of and concerning" a group?

If the group is very large, then no individual member is defamed.

If the group is small, however, then each member can sue.


What about "of and concerning" Persons who may be defamed?

Any living person may bring a defamation action.

Legal entity can bring an action.

No deceased person can make claim but claim can be made against someone who made a statement of the dead.


Publication Requirement of Defamation

1. Communicated in an understandable manner to some third person.

2. Negligence with respect to the publication

**The plaintiff at CL must prove at least negligence with respect to publication, but NOT WITH RESPECT TO FALSITY.


Who publishes Defamation

All who participates in the creation of the defamatory message.

"Secondary Publishers" are not liable unless they have reason to know that what they are publishing is defamatory.


Damages of Defamation

1. General (presumed) damages
2. Special Damages


General Damages

Includes all other aspects of injury to the plaintiff's reputation, such as loss of friends and humiliation.


Special Damages of Defamation

Plaintiff is required to prove "special damages" as part of a prima facie defamation case.

Referes to pecuniary injury resulting from directly from a third party's reaction to the defamatory statement, such as loss of trade, employment or







Jury can assume general damages.

Defamation of a more enduring time.

Out there for awhile



Plaintiff must prove special damages

Blurted out, less permanent


Exception to Slander Cases

Particularly Harmful instances that render General Damages

Slander Per Se


Slander Per Se

1. Adversely reflect on one's trade, profession, or office
2. Accuse the plaintiff of committing a serious crime or a crime of moral turpitude.
3. Imply that the plaintiff currently has a "loathsome" disease
4. Impute unchastity to a woman


Common Law Defenses to Defamation

1. Truth
2. Absolute Privilege
3. Qualified Privilege



Needs to relate to the defamatory STING of the statement.

Must be substantially true


Absolute Privilege

1. Statements made in tehe course of judicial proceedings
2. Statements in the course of legislative proceedings
3. Statements by executive official in the course of their duties
4. Communications between spouses
5. Consent
6. Broadcasts compelled by law.


Qualified Privilege

Limited to having good faith and being within scope.

1. Reports accurate when made on public proceedings (a report on a court

2. Statements made to persons who act in the public interest

3. "Fair comment" on matters of public concern (book review)

4. Statements made in the private interest (board member to board, job reference)


Constitutional Limitations of Defamation

Important First Amendment value lies in this topic.

Courts have determined that


Public Plaintiffs/ Matters of Public Concern

A public plaintiff who brings a defamation action regarding a statement on a matter of public concern must prove ( in addition to the common law elements of defamation) the following by clear and convincing evidence:
1. That the statement is false
2. That the Defendant either knew that statement was false or entertained serious doubts about its truth and published it anyway.


Public Plaintiff

1. Public Officials
2. Non-Discretionary Officials
3. Non-elected public officials who has, or appears to have, discretionary power over matters of public interest.
4. Public Figures - thrust in the light.
5. Limited-purpose public figures - limited to purpose


Private Plaintiffs/ Matters of Public Concern

A private person who brings a defamation action regarding a statement on a matter of public concern must prove:
1. Fault
2. Fault amounting at least to negligence

If negligence, can only recover actual damages with reasonable certainty.

To get it all, MUST PROVE MALICE


Invasion of Privacy

1. Intrusion
2. Disclosure of Private Facts
3. Appropriation of Likeness
4. False Light



An unreasonable invasion of Plaintiff's right of solitude and seclusion. The invasion must be objectionable to a person of reasonable sensibility.

**Must be an invasion to one's seclusion


Disclosure of Private Facts

Disclosure of private facts is the public disclosure (to more than one person) of information concerning the private life of another is:
1. Highly offensive to a person of reasonable sensibilities;
2. Not of legitimate concern to the public.


What is the exception to Disclosure of Private Facts

First Amendment precludes liability for:
1. Publication of true, "newsworthy" facts obtained through lawful means,
1. By a publisher who obtained the facts from a source who unlawfully obtained them


Appropriation of Likeness

The appropriation of one's identity or likeness for commercial purposes, without consent.


False Light

Portrayal of Plaintiff in a false light in the public eye that is objectionalbe to a reasonable person.

Protects the persons feelings not reputation.

**Loss of money, some illegal action.



To establish deceit, the Plaintiff must prove:
1. Misrepresentation by defendant of a MATERIAL past or present fact;
2. Made with KNOWLEDGE of falsity or reckless disregard as to falsity of the representation;
3. Made with intent to INDUCE RELIANCE by the Plaintiff;
4. That Plaintiff JUSTIFIABLY RELIED on the misrepresentation;
5. Plaintiff incurred damage


Material Misrepresentation

Must be one that a reasonable person would have taken into consideration in making the relevant decision.

Must concern past or present fact.


Failure to Disclose Material Misrepresentation

1. Active Concealment
2. Nondisclosure


Active Concealment

Is actionable unless the transaction is characterized "as is" or the plaintiff is otherwise put on notice of the concealed facts.


When is there a duty to disclose a material misrepresentation?

1. The defendant has a fiduciary

Page 70


Knowing Falsity or Reckless Disregard

Must prove that the Defendant:
1. Knew of the representation's falsity
2. Acted in reckless disregard for the truth.

**Negligence is not enought


Intent to Induce Reliance

Must show the specific intent to induce the Plaintiff to act.


Justifiable Reliance

1. Of Fact - must be reasonabble

2. Of Opinion - only in limited circumstances such as:
- Defendant has expertise
- Stands in a fiduciary or confidential relationship
- Had an undisclosed interest


Causation of Deceit

The misrepresentation must play a substantial part in inducing the plaintiff to act or refrain from acting.


Damages of Deceit

The Plaintiff must prove actual damages with reasonable certainty.

Benefit of the bargain


Benefit of the Bargain

Plaintiff gets what they would have gotten if the facts were true.


Negligent Misrepresentation

Most courts will hold that a Defendant who honestly believed the statement is not liable.

1. The Nature of the defendant's activity
2. A special relationship between the defendant and plaintiff justify holding defendant accountable for a failure to exercise due care.

**Uses Duty/Proximate Cause analysis and liability limited to:
- who statement is made to
- reasonably foreseeable.





Inducing a Breach of Contract

Inducing breach of contract is:
1. A volitional act by defendant,
2. Done with the requisite intent,
3. Which causes a third person to breach an existing contract with Plaintiff.
4. Existing Contract


Three People Involved in Inducing a Breach of Contract

1. The plaintiff
2. The person with whom the plaintiff has a valuable business relationship
3. The defendant who interferes with the relationship.


Intent of Inducing Breach of Contract

Intent to induce the third person to breach the contract with the Plaintiff.


Defenses to Inducing Breach of Contract

A defendant who acts for a justifiable purpose using justifiable means is not liable for tortious interference.


Interference With Contractual Relations

If all other elements of inducing breach are proven, defendant may still be liable if the interference with Plaintiff's contractual relations makes performance more difficult rather than causes breach.


Interference with Prospect Economic Advantage

Inducing breach of contract is:
1. A volitional act by defendant,
2. Done with the requisite intent,
3. Which causes a third person to breach an existing contract with Plaintiff.

**No Contract required.


Injurious Falsehood

A false statement, made to another by defendant with the requisite intent, which causes economic injury to Plaintiff


Malicious Prosecution

The institution of criminal proceedings by Defendant, done for an improper purpose and without probable cause, that terminate favorably to the Plaintiff and cause Plaintiff damages.


Two proceedings of Malicious Prosectuiong

1. Underlying proceeding Defendant
2. Malicious prosecution case.


Plaintiff must show in Malicious Prosecution

1. No probably cause for the prosecution
2. No belief by either party or magistrate
3. Attorney advised.


Terminate Favorably

The criminal proceeding must have terminated with the Malicious Prosecution Plaintiff winning.

Not enough if prosecutor did not pursue the case though discretion or procedural grounds.


Defenses of Malicious Prosecution

1. Immunity of Judges and Prosecutors

2. Proof of guilt.


Wrongful Institution of Civil Proceedings

Most jurisdictions have permitted recovery for wrongful institution of civil proceedings without probably cause on much the same basis for malicious prosecution


Abuse of Process

The intentional misues by defendant of a judicial process, civil or criminal, for an ulterior purpose other than that for which the process is intended.





Joint and Several Liability

Holds joint tortfeasors responsible for Plaintiff's entire injury, allowing Plaintiff to pursue all, some, or one of the tortfeasors responsible for the injury for the full amount of the damages.

**not really liked by the States


When if Joint and Several liability availabel?

1. Concerted Action (through express/implied agreement)
2. Vicarious Liability
3. Indivisible Harm


Concerted Action

Two or more tortfeasors act in concert through agreement to act in a common endeavor.


Vicarious Liability

An employer and an employee may both be held liable for the employee's torts committed within the scope of employment.


Indivisible Harm

Two or more tortfeasors cause a single indivisible injury.


Joint and Several Liability Apportionment of Damages

Liable only for the injury each causes, when damages can be reasonably apportioned.


Satisfaction and Release

When the Plaintiff recovers fully THAT IS IT.

Release of one does not release all.



Allows a tortfeasor who pays more than his or her share of a common liability to recover from other joint tortfeasors who tortious conduct also cause the plaintiff's injuries.

Two ways:
1. Comparative Contribution (only amount owed to each other) (percentages of fault) (the difference)
2. Divide up damages in equal amounts.



Allows the defendant to shift the entire loss to another person.


When is indemnity available?

1. To one who is vicariously liable for the torts of another;
2. In strict products liability cases;
3. When provided by contract;
4. Where one party is "secondarily" negligent as when one defendant has negligently failed to discover or to prevent the misconduct of one "primarily" negligent.


Vicarious Liability

1. Respondent Superior
2. Joint Enterprise


Respondent Superior

An employer will be liable for the torts (intentional if furthering employer's business) of her or his employee committed in the course of employment.



Employer exercises control over the details, methods, and manner of employees' work but not that of independent contractors.


Independent Contractors

The employer will be liable for the torts when:
1. The actor performs for the employer a non-delegable duty;
2. Some inherently dangerous activity


Non-Delegable Duty

1. Duties imposed by statute or contract
2. Commercial business's duty to keep premises safe for business visitors.


Scope of Employment

Distinguish actions taken by the employee entirely for the employee's own benefit (FROLIC) and temporary slight deviations from an employer's task to accomplish some errand of the employee's own (DETOUR).

Courts generally regard some detours as reasonably within scope (foreseeability).


Joint Enterprise

Vicarious liability is imposed on a person engaged in a joint enterprise with the person who commits the tortious act.


Elements of a Joint Enterprise

1. An express or implied agreement to the activity;
2. Some common purpose or goal;
3. Some common pecuniary purpose or goal;
4. Some equal right of control


Negligence vs. Vicarious Liability

1. Negligent Selection
2. Negligent Entrustment
- must have reason to knowledge of incompetency or inexperience or act recklessly
3. Negligent Supervision or Control
4. Negligent supervision by parents
- must have ability to control, knowledge of tendency and fail to act.
5. Dram Shop, Bar owners (selling to minor or drunk)


Wrongful Death

An action for the losses caused to the wrongful death beneficiaries by the death of the victim.

Tortfeasor actions results in the death, Estate has a loss, others have loss.

Can include:
-services deceased could have provided
-loss of companionship


What is the loss in wrongful death?

It is derivative.

No claim if the decedent would not have a claim. Defenses apply to decedent and beneficiary.



The survival of tort claims for personal injury and property damage.

The action, brought by the estate, is for losses the decedent could have recovered had he or she survived.

Damages are loss to the Estate.

Open to Defenses against decedent.


Difference between Survival and Wrongful Death Award

Survival recovery goes to the estate.

Wrongful death goes to the claimants.



1. Federal Government
2. Official Immunity
3. Charitable Immunity
4. Intra-Family Immunity


Fedearl Government Immunities

Immune unless waived.

Federal courts - can be sued as if it were a private person under the law of the state where act occurred.


Limitations of Federal Immunities

1. Assualt
2. Battery
3. False arrest and imprisonment
4. Malicious prosecution
5. Abuse of process
6. Libel
7. Slander
8. Misrepresentation
9. Tortious interference with contract

**Immunity for the "discretionary" acts of federal official, as oppose to "ministerial" acts.


State Immunities

Look at Amendment 11


Official Immunities

Absolute: Judges, prosecutors, grand juries, and legislators are absolutely immune from suit for acts within the scope of their office.

Qualified: Executive officials enjoy qualified immunity within scope of position.


Charitable Immunity

Most States have abrogated the immunity from tort liability formerly enjoyed by private charitable organizations.


Intra-Family Immunites

Most States have abrogated interspousal immunity. Most for parental as well.


Limitations Period

At expiration, bars claims.

When does clock start? at the time plaintiff actually incurs damages
-Can be delayed through discovery rule
-Can be tolled

Is there a time out? if injury is fraudulently concealed, disability in Plaintiff





Damages in Torts

1. Compensatory
2. Punitive


Compensatory Damages

1. General
2. Special

**Mitigation of Plaintiff's own actions that may increase amount


Punitive Damages

Used to punish

Most courts set a standard as:
1. Malicious
2. Oppressive
3. Wanton
4. Willful
5. Sometimes rechlessness


Personal Injury Remedies

1. Non-economic losses
2. Future non-economic and economic losses

**Present Value Discount


Non-Economic Personal Injury Loss Elements

1. Pain and suffering experience as the result of the injury;
2. Mental distress associated with disability or disfigurement caused by the injury, or for mental distress alone with appropriate
3. Loss of consortium(for injury to one's spouse)
4. In jurisdictions following the modern trend, the Plaintiff's diminished enjoyment of life.


Real Property Remedies

1. Injury to premises - diminution in market value
2. Waste - Injury to real property by a defendant in possession

**Cost to repair is the remedy


Types of Waste and Their Result

1. Voluntary Waste - Entitled to damages as general rule
2. Permissive Waste - failed to fix, entitled to cost of fixing
3. Ameliorative Waste - no damages when improvements exist.


Nuisance Remedies

1. Recovery of loss of use and enjoyment
2. Injuctive Relief





For conversion, the defendant must have the intent to _______ with the Plaintiff's right of possession.

Perform the act that interferes


What three things must a Plaintiff show if they suffered emotional distress because of the relation to the injured person?

1. That the plaintiff was present when the injury occurred to the other person;

2. That the plaintiff was a close relative of the injured person;

3. That the defendant knew that the Plaintiff was present and a close relative of the injured person.


The defense of consent is not available if:

The Plaintiff consented due to a mistake induced by the defendant.


What is the rule regarding damages for inentional infliction of emotional distress?

Proof of actual damages is required. Must be severe.

**No Nominal
**Yes Punitive


When can a private citizen make a felony arrest without a warrant?

Only if a felony has in fact been committed and they reasonably believe that person committed the felony


What is the exception to the requirement of a Plaintiff having to be presentor a close relative of the injured person?

If the defendant's design was to cause severe distress to the plaintiff they will not have to satisfy the requirement.



Directly damaging a plaintiff's chattel


Two Forms of Acts of Interference

1. Dispossession
2. Intermeddling


Contact that is Harmful

Causes actual injury, pain, or disfigurement.


Contact that is Offensive

Considered offensive by a reasonable person of ordinary sensibilities.


Intent Element of Intentional Torts

1. If the actor's goal is to bring about certain consequences;
2. The actor knows with substantial certainty that certain consequence will result.


For a prima facie case of assault, the element of apprehension may NOT be established by _________.

Words alone


Transferred intent defined

Intending to commit a tort against one person but the intent is transferred to another tort or person.


Transferred Intent Doctrine Applies to...

Where defendant intends to commit a tort against one person but instead:
1. Commits a different tort against the same person;

2. Commits the same tort as intended but against another person;

3. Commits a different tort against a different person.