Barbri - Torts Lecture

Intentional Torts
MBE Overview examiners love it. 1/3 of the torts questions.
General Rules
1. The extreme sensitivity of a plaintiff is ignored in determining if the
plaintiff has a claim. We always assume we are dealing with a person
of ordinary or reasonable sensitivity.
2. In the world of intentional torts, there are no incapacity defenses. In
many branches of a law, there are a lot of people who lack legal
capacity (e.g., a child). However, if a child punches you in the face,
the child is liable for an intentional tort (battery). The same is true for
a mental ill person.
a. If you see an answer on the MBE that refers to lacking legal
capacity for an intentional tort, never pick it.
3. All intentional torts require intent.
Individually Named Intentional Torts Seven (7)
1. Battery
a. Intent
i. Deliberately and on purpose.
ii. A defendant is acting intentionally if he desires to bring
about the forbidden result; or knows that the result is
certain to occur.
b. To commit a harmful or offensive contact
i. Harmful
1. Too easy to test it's a contact that puts you in the
hospital, that makes you bleed, or kills you.
ii. Offesnive
1. More likely.
2. Substitute "unpermitted" for the concept of
offensiveness. Pertains to a person of reasonable
and ordinary sensitivity.
a. E.g., unwanted sexual touching, even if it's not
in an intimate part of the body, is always
offensive.
c. With the plaintiff's person.
i. Anything the person is holding or connected to is
considered a part of the person.
1. E.g., someone jumps on your car while you're driving
it. Battery.
2. E.g., a girl is riding a horse and a stranger slaps the
butt of the horse. Battery.
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d. A battery need not produce instantaneous harm or offense

i. E.g., poisoning a sandwich two hours before its eaten is still
a battery.
2. Assault
a. Intent
b. The defendant must place the plaintiff in reasonable
apprehension;
i. "Apprehension" it communicates something that could be
misleading. Apprehension does not just mean fear; it also
means knowledge or awareness.
ii. Fear is not required; if the person is small and you're huge,
the small person can still commit an assault.
iii. However, a plaintiff has to know that it's coming. Plaintiff
must see it coming and be aware of the defendant's action.
iv. Unloaded Gun Problem/Empty Threat:
1. What if defendant purports to engage in threatening
conduct?
But we read information that the
defendant cannot bring that threat to conclusion. Is
there an assault?
a. If the plaintiff knows that the gun isn't loaded,
then there is no tort.
b. But, if the plaintiff thinks an unloaded gun may
be loaded, then it's an assault.
c. If the plaintiff has no information, then look at
what a reasonable person would think.
c. Of an immediate battery
i. Words alone lack immediacy a verbal threat, by itself, is
not an assault. There must be conduct, not just words (i.e.,
there has to be a "menacing gesture")
ii. Words can negate immediacy
1. Conditional words "[raises fist in a menacing way] if
you weren't my best friend, I would beat the crap out
of you!" No assault.
2. Words promising future action "[raises fist in a
menacing way] tomorrow, I'm going to beat the crap
out of you."
3. False Imprisonment surprisingly popular on the MBE
a. Intent
b. Defendant commits an Act of Restraint
i. Physical restraint is obvious, but a threat can also be
sufficient.
1. Threats only work if it would operate on the mind of
an ordinarily and reasonably sensitive person.

ii. An omission (failure to act) can be an act of restraint if you

have a preexisting duty to help the plaintiff get from point
A to point B
iii. An act of restraint does not count for legal purposes unless
the plaintiff is aware of or harmed by the confinement
c. Plaintiff must be Confined Within a Bounded Area
i. A "bounded area" does not have to be marked out by
physical boundaries, and it can be approximate.
1. If I say, "If you leave this general area, I will shoot
you." this counts for a bounded area
ii. An area is not "bounded" if there is a reasonable means of
escape that the plaintiff can reasonably discover.
1. You're not locked in if you can get out. But, if the
way out is dangerous, disgusting, humiliating, or
hidden, then it is a bounded area and there is a valid
cause of action.
4. Intentional Infliction of Mental (Emotional) Distress
a. Relaxed intent requirement.
i. Applies if you're acting recklessly
b. Outrageous Conduct
i. Conduct is outrageous if it exceeds all bounds of decency
tolerated in a civilized society.
ii. Mere insults are not outrageous and will not give rise to a
cause of action.
1. However, insults, when added to other things, can
make a bad case worse and push things over the line
into "outrageous"
iii. Hallmarks of outrageousness (plaintiff friendly examples):
1. The conduct is continuous or repetitive no longer
merely annoying, now it's outrageous.
2. The defendant is a common carrier or an innkeeper.
If they do something that may not cross the line in
another context, then the law may hold them liable
because of their business position.
a. Common Carrier transportation company
b. Innkeeper hotel
3. Plaintiff is a member of a fragile class.
a. Young children decision to target a young
child is outrageous
b. Elderly people
c. Pregnant women defendant has to know that
the woman is pregnant.
iv. Prior awareness of plaintiff's peculiar emotional sensitivity
and chooses to exploit that, then that's outrageous.
1. Knowledge
2. Deliberate exploitation
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c. Suffer Severe Distress

i. Plaintiff can prove severe distress through any evidence he
chooses
1. No requirement for certain types of evidence
ii. Exam advice: When they test on this, they will negate
this element in the facts; they stipulate to the opposite but
in a way that's inconspicuous.
1. E.g., "Patricia was mildly annoyed by these
behaviors, so she sued for IIED." Mildly annoyed is
the opposite of severe distress.

5. Trespass to Land
a. Intent
b. Act of physical invasion
i. Entering someone else's property
1. Defendant doesn't have to be aware that he has
crossed a property line. The only intent required is
the intent to get to that location; mistake about
entitlement to be there is not a defense.
ii. Projecting an object onto the land causing an object to go
on the property.
1. The object must be tangible
2. Odors, sound waves, and light do not count
c. Interference with plaintiff's exclusive possession of real estate
i. The proper plaintiff is the possessor of the real estate
e.g., the renter of the real estate
ii. Exclusive possession includes the air above and the soil
below the land, but only out to a reasonable distance
6. Trespass to Chattels and Conversion
a. Trespass to Chattels small harm
i. Intent
ii. Interference with plaintiff's personal property
1. Slight interference
iii. Remedy is cost of repair
b. Conversion big harm
i. Intent
ii. Interference with plaintiff's personal property
1. Significant interference
iii. Remedy is full market value of the item. It's a forced sale
of the chattel.
c. Personal Property is anything that's not real property, including
electronic data
d. These are private, civil, money damage causes of action seeking
monetary damages
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Affirmative Defenses to Intentional Torts

1. Consent
a. A defense to all intentional torts
b. Did the plaintiff have legal capacity?
i. Drunk people do not have legal capacity
ii. Children can consent to age-appropriate torts (e.g., 11 year
olds consent to wrestling, but not to surgery or sexual
contact).
c. Express Consent
i. Words giving the defendant permission
ii. Exam Tip: Examiners will likely test on an exception that
holds express consent invalid if it is given as a result of
fraud or duress
d. Implied Consent "Custom and Usage"
i. If you go to a place or participate in an activity where
certain invasions are routine, you give implied consent
ii. E.g., team sports.
1. But, the scope of the consent you give has nothing to
do with the rules it's only what's customary in the
sport.
iii. Body Language Consent - There can be implied consent
arising from defendant's reasonable interpretation of
plaintiff's
objective
conduct
and
surrounding
circumstances.
1. You're allowed to see, observe, and draw reasonable
conclusions
e. Scope
i. If defendant exceeds the scope of consent, then it's a tort.
ii. E.g., patient gives doctor permission to operate on a knee,
but the doctor also operates on the nose. The doctor
exceeded the scope of consent
2. Protective Privileges
a. Types:
i. Self-Defense
ii. Defense of Others
iii. Defense of Property
b. Elements
i. Proper timing
1. The threat you're responding to is in progress as you
act or imminent
2. To have a proper protective privilege, you must be
responding in real timein the heat of the moment.

a. E.g., I tell you that I'll punch you in the face

tomorrow. You hit me as I tell you that. That's
not self-defense.
b. E.g., I hit you and walk away. You chase me
down after the fact and punch me.
ii. Reasonable belief that the threat is genuine
1. Reasonable mistake will not destroy the privilege
2. E.g., you're waiting for your suitcase in the airport for
hours and you eventually see someone else walking
away with what you think is your suitcase, so you run
up and grab it. It's not yours. The owner of the
suitcase sues you for battery. Defense of Property
applies because it was a reasonable mistake.
iii. Force must be proportional
1. In a life threatening situation, you can use deadly
force
2. In cases that involve defense of property, deadly
force is always considered excessive.
a. Also, you cannot do by machine what is
forbidden to do in person. No shotgun traps.
3. Necessity Defenses
a. Only available if one of the torts alleged is one of the three
property torts
i. Trespass to land
ii. Trespass to chattels
iii. Conversion
b. Public Necessity
i. The defendant invades the plaintiff's property in an
emergency but does so to protect the community as a
whole, or a significant group of people. Complete defense
no liability for the property tort.
ii. Exam Tip: There will be some kind of emergency, usually
some kind of natural disaster (e.g., a fire with heavy wind
moving towards a gasoline refinery). Onto the scene
comes the defendant, "savior of the city", an altruistic man
with nothing to gain. To stop the fire, he goes into a
factory to take the factory's flame retardant chemicals. No
trespass or conversion.
iii. We don't want this person to hesitate; we want this person
to have legal immunity so he will save the city.
c. Private Necessity
i. Defendant invades plaintiff's property to protect an interest
of his own. This defendant is self-interested and acting out

of personal motives. Not an absolute defense. Generates

three interconnected legal consequences.
1. Defendant in a private necessity case remains liable
for compensatory damages
2. Defendant in private necessity is not liable for
punitive or nominal damages
3. As long as the emergency continues, the plaintiff
(property owner) cannot throw the defendant off the
land, in effect forcing him back into the emergency.
ii. Defense is absolute if the act is to benefit the owner of the
land
Defamation
1. Defamatory statement about the plaintiff
a. Least tested of the three elements
b. Something is defamatory if it tends to adversely affect the
plaintiff's reputation. It brings you down in the estimation of
other people.
c. Mere name-calling is not defamatory because it lacks any
reputational consequence.
d. Defamatory is an allegation of fact. It sounds factual in nature
and reflects negatively on the person being discussed.
e. What about opinion statements?
i. E.g., "In my opinion"
ii. If it sounds like the defendant has facts to back it up, then
it could be defamatory (e.g., "I'd be careful about using Dr.
Smith as my surgeon")
iii. If it's merely a subjective opinion (e.g., "that's a really bad
hamburger"), then it's probably not defamation
iv. Generally, the broader the language used, the less likely
that it will be reasonably interpreted as a statement of fact
or an opinion based on specific facts
f. In the United States, you can only defame a living person.
g. Defaming a group of people
i. All members of a small group each may establish the
statement was "about" him by alleging that he is a
member of the group
ii. All members of a large group No one member may
establish the "about" element of the cause of action
iii. Some members of a small group plaintiff can recover if a
reasonable person would view the statement as referring
to him
2. "Publication" of the statement
a. Must reveal the statement to at least one person other than the
plaintiff. "Publication" of the statement to the person it's about
will not affect his reputation.
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i. Damages increase as the number of people who may

read/hear the statement increases.
b. Publication does not have to be deliberate. Can be careless or
negligent.
3. Damages often presumed
a. Libel cases a defamatory statement that is permanently
embodied in some medium of expression (typically written
down). Damages presumed.
b. Slander Oral (Spoken) defamation.
i. Slander per se Damages presumed.
1. Statement about plaintiff's business or profession
2. Statement that the plaintiff has committed a serious
crime
a. "Crime of moral turpitude"
b. Any crime involving dishonesty or violence
3. A statement imputing unchastity to a woman
4. Plaintiff suffers from a loathsome disease
a. Leprosy
i. "John is a leper;" "Mary lives in a leper
colony"
b. Venereal disease
ii. Slander not per se must prove economic damages
(pecuniary injury)
4. Affirmative Defenses:
a. Consent
b. Truth
i. Not punished for speaking the truth
ii. Defendant has to prove truth at trial
c. Privileges
i. Absolute Privileges
1. Spouses if a married person says something to
his/her spouse, that cannot be the basis of a
defamation lawsuit because there is an absolute
privilege to talk to your spouse
2. Officers to the three branches of the gov't greatest
import in the judicial context. Not only granted to the
judge, but also to witnesses and lawyers.
ii. Qualified Privileges
1. Based on the circumstances of the speech
2. Arise when there is a public interest in candor (e.g.,
letter of recommendation)
3. Defendant must make the statement in good faith
there must be a reason for making the statement
4. If you know the statement is false and say it anyway,
then it's false not privileged.
5. Confine yourself to the relevant topic at hand.
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5. Public Concern Cases

a. Underlying statement is a statement that is a matter of public
concern
i. E.g., mayor taking kickbacks; military leader is leaking
secrets; athlete is taking drugs
ii. If there is a suspicion that the mayor is taking bribes,
people should be free to talk about that
b. Two extra elements here:
i. Faslsity plaintiff has to show that the statement is
factually inaccurate
1. Truth is no longer a defense, it's now presumed.
ii. Fault statement not made in good faith
1. If plaintiff is a public figure, then plaintiff must prove
defendant's knowledge of falsity or that the
defendant made the statement recklessly.
a. Reckless e.g., newspaper publishes story about
mayor taking bribes based on one rumor
without any resource
2. Private figures need not prove knowledge or reckless
falsity
a. At least negligence is required
b. Damages are limited to the actual injury
c. E.g., newspaper publishes a story about the
mayor's secretary that she helped the mayor
smuggle money.

Privacy Law
Privacy Torts
1. Appropriation
a. Defendant uses the plaintiff's name or picture for commercial
purposes and without permission
i. EXAM CAUTIONS
1. Newsworthiness exception if you put a football
player's picture on the Wheaties box, that's a tort.
But, if you put his picture in the sports section of a
newspaper, you can do that without permission
2. Doesn't have to be a celebrity it can be a private
person
2. Intrusion
a. Invasion of the plaintiff's seclusion in a way that would be highly
offensive to the average person
i. Types:
1. Involves wire tapping
2. Covert video surveillance

3. Listening at the keyhole

4. Peeping Tom
ii. Must be in a place where the person has a reasonable
expectation of privacy
3. False Light (False gossip)
a. Widespread Dissemination of a material falsehood about the
plaintiff that would be highly offensive to the average person.
Also requires publicity for liability to attach
b. False light that is not defamatory:
i. Religious beliefs
ii. Political beliefs
4. Disclosure (True gossip)
a. Widespread dissemination of confidential information about the
plaintiff that would be highly offensive to the average person
i. Exam Caution: Another newsworthiness exception.
Disclosure of presidential candidate's medical records is
newsworthy and not a tort.
b. Must be confidential.
i. E.g., Pete is a gay man who is out to his friends and family
and involved in the political gay community. But, Pete is
not out at work yet.
5. Defenses to Privacy Torts
a. Consent
b. Defamation privileges (Absolute and Qualified Privileges) apply to
false light and disclosure

Tort of Negligence
Negligence
1. Duty
a. Obligation to take risk reducing precautions, and if you fail to
take those risk reducing precautions and your failure results in
injury, you've gotta pay for that.
b. Who should I be thinking about? Foreseeable Victims
i. You owe a duty to take precautions for the benefit of
"foreseeable victims"
ii. No duty owed to unforeseeable victims
1. Unforeseeable victims always lose negligence cases
2. Unforeseeable victims are usually very far away
iii. Exception to unforeseeable victims rule
1. You owe a duty to rescuers; they're given a free pass
with respect to the Palsgraf problem.
c. How much care? Reasonable Prudence
i. As much care as a reasonably prudent person acting under
similar circumstances

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ii. We make no allowances for the defendant's personal

shortcomings this is an inflexible standard
iii. Everyone is judged against the reasonably prudent person
iv. Exceptions:
1. If the defendant has superior skill or knowledge in
the area, then the defendant is compared to a
reasonably prudent person with superior skill or
knowledge.
2. Where relevant, we will incorporate physical
attributes of defendant into the reasonably prudent
person standard of care.
a. E.g., If the defendant is blind, the reasonably
prudent person is blind.
d. Special Duty Standards of Care Negligence Claims Against . . .
i. Children
1. Children under the age of four (4) are incapable of
negligence.
a. Very young children do not owe the rest of the
world any standard of care
2. Children must behave as a hypothetical child of
similar age, experience, and intelligence acing
under similar circumstances.
a. Different for every child we encounter every
child has a different standard of care. This
makes it flexible.
3. E.g., two 8-year-old children playing outside. Billy is
riding a tricycle for the first time ever. He rides to
the corner, makes a loop, and comes back, staying
on the street. Susie is sitting on the pavement
playing jacks. Billy runs over Susie's hand, breaking
all the bones in her fingers. Susie sues Billy, claiming
he was negligent in operating his tricycle.
a. Billy is held to the standard of a child of similar
age 8-year old
b. Billy is held to the standard of a child with
similar experience beginner/novice
c. Billy is held to the standard of a child with
similar intelligence Billy is stupid
4. Exception: When a child is engaged in an adult
activity, the standard changes and we go back to the
reasonably prudent person under the circumstances.
a. E.g., operating any vehicle with an engine is an
adult activity
ii. Professionals
1. This refers to:
a. Health care professionals
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b.
c.
d.
e.

Accountants
Lawyers
Architects
Any group of people who in the practice of their
trade or occupation requires a special skill or
license, and may be self-regulating.
2. Two ways of phrasing standards of care:
a. (1) Restatement A professional is obligated to
exercise the skill and knowledge normally
possessed by members of the same profession
in good standing.
b. (2) Prof's A professional must behave with the
same care as average members of the same
profession. The custom of others is the
standard of care.
c. E.g., the defendant doctor is compared to other
doctors in the real world. They have to do it the
way the other doctors do it. The custom of the
practice is dispositive.
d. You may need an expert witness, since a jury
will not necessarily be aware of how most
doctors behave.
e. The standard of care is not to behave as a
reasonable doctor.
i. This is incorrect because reasonableness
implicates a cost/benefit analysis. We
don't do that when we adjudicate
doctors; we only compare them to their
colleagues.
iii. Premises Liability
1. Plaintiff enters real estate (private propertyland or
buildings).
While on the property, the plaintiff
encounters a hazardous condition and gets hurt. Did
the person who possessed the property owe a prior
duty to protect the entering plaintiff from the
hazardous object?
2. The answer depends on the kind of entrant:
a. Unknown/Undiscovered Trespasser
i. (1) Plaintiff comes on the land without
permission and (2) defendant has no idea
the plaintiff is there.
1. Zero duty of care. No duty to
protect unknown trespassers.
ii. E.g., burglar comes into your house while
you're away on vacation and the burglar
gets injured in the house.
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iii. Undiscovered
trespassers
are
unforeseeable victims
b. Known/Anticipated Trespassers
i. Possessor either knows or should know
that they're on the land.
ii. EXAM TIP: Pattern of trespassing in the
past triggers an anticipated trespasser.
E.g., hikers frequently
iii. Standard of care: Possessor must protect
these people only from that small subset
of hazards that meet four conditions
(must be artificial hazardous condition):
1. No duty to trespassers for naturally
occurring hazards;
2. The condition must be highly
dangerousno
duty
if
mildly
dangerous;
3. The condition has to be concealed
(hidden) from the entrant (no duty
if open or obvious); AND
4. Defendant/possessor has to have
knowledge of the condition in
advance
iv. The possessor must only protect from
known, hidden, manmade death-traps on
the land.
c. Licensees
i. People
who
enter
property
with
permission, but who do not confer
economic benefit on the possessor (e.g.,
social guest)
ii. Duty with respect to natural/artificial
conditions only if:
1. Condition is concealed (hidden)
from licensee
2. Condition
is
known
by
the
possessor/defendant
3. "Land possessor must protect from
all known traps on the land"
d. Invitees
i. People who enter with permission but do
so in a way that confers economic benefit
on the possessor. In most jurisdictions, it
is an invitee scenario if there is
permission for everyone to enter (e.g.,
customer of a business).
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ii. Duty standard:

1. Condition is hidden from the invitee
2. Condition is one that the possessor
actual knew about or could
have discovered through a
reasonable inspection
a. "Reasonable inspection" is
one
undertaken
by
the
reasonably prudent person.
Informed
by
cost/benefit
analyses.
iii. You must protect invitees from all
reasonably knowable traps on the land.
iv. E.g., person slips and falls on cooking oil.
1. They're an invitee
2. The cooking oil is clear so it's
probably hidden.
3. Key question: How long has it been
there? If 30 seconds, reasonably
prudent person wouldn't have
known. If an hour, a reasonably
prudent person probably would
have discovered it.
3. Three more special scenarios:
a. Police officers and firefighters
i. Police officers and firefights never
recover if the injury is an inherent risk of
their job
ii. Assumption of the risk
b. Child trespassers Attractive Nuisance
Doctrine
i. Ordinary or reasonable care to prevent
child trespassers from getting hurt
ii. If there is something attractive to
children on your property, that puts you
on notice and you have to be careful.
iii. E.g., you own or possess a parcel of land
and trying your best to avoid legal
liability. How likely is it that kids will
trespass? If no chance, do nothing. If
high chance, perhaps some affirmative
action
to
make
property
safer.
Something that makes it more likely is an
object that's a kid-magnet (e.g., swing
set on property across from middle
school).
Must exercise reasonable
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prudence, such as removing hazardous

conditions from around the swing set.
iv. E.g., in-ground swimming pool.
1. Case A: live next to family with 17year-old teenager. A teenager may
be able to manage the pool and
determine whether he can swim
before jumping in.
2. Case B: 2-year-old infant. 2-yearold infant can't manage the pool
and doesn't know any better. Build
a fence.
4. Two ways to satisfy the duty:
a. Fix the problem replace the bridge
b. Warn potentially entrants put a sign by the
bridge; cones/signs around the oil; etc.
c. EXAM TIP: for premises liability questions on
the MBE, look closely at something that says
"warn"
iv. Statutory standards of care Negligence Per Se
1. Plaintiff may discover a criminal statute that bears
upon the conduct being litigated
a. E.g., jury instruction: "defendant had a duty to
stop at a red light; defendant had a duty to not
drive higher than 35 mph. If you find that
defendant violated the statute, then you must
find the defendant negligent.
2. Two part test for borrowing a statute
a. Plaintiff must demonstrate that he was a
member of the class of persons that the
statute is trying to protect
b. Plaintiff has to demonstrate that the accident
which occurred is within the class of risks that
the statute was trying to prevent
c. "Class of Person/Class of Risk test"
3. One group of statutes that will almost satisfy this test
a. The motor vehicle code
4. Two Exceptions (class of person/class of risk is
satisfied, but no statute):
a. Statutory compliance is more dangerous than
statutory violation
i. E.g., driver swerves across double yellow
line to avoid a child, causing a driver
traveling the opposite direction to swerve
off the road and hit a tree. Higher danger

15

is to hit the child. Apply reasonably

prudent person standard.
b. Compliance
was
impossible
under
the
circumstances
i. E.g., medical emergency. Driver driving
down a thoroughfare and has a heart
attack, rolls through a red light and hits a
pedestrian. Copmliance was impossible
because I was having a heart attack
v. Duties to Act Affirmatively
1. This means to undertake a course of action in the
first placechose to participate in an activity
2. There are none.
3. Exam tip: This proposition comes up in only one
context: No duty to rescue a stranger in peril. E.g.,
one day Michael Phelps, Missy Franklin, and Ryan
Lochte were walking down the street wearing all their
gold medals and decide to take a shortcut through a
park with a lake, and they hear a noise coming from
the lake. The noise is made from a drowning little
girl who is screaming for help. The people don't help.
4. No Duty to Rescue Exceptions:
a. If there is a preexisting formal relationship,
(e.g., employer/employee, innkeeper/guest,
common carrier/passenger)
b. Defendant caused the peril that made the
victim require rescuing
c. The duty is a duty to act reasonably under
the circumstances. NOT a duty to rescue. It
is sloppy and inaccurate to say you have a duty
to rescue.
i. Never obligated to put your own life in
peril
5. If someone chooses to act, then they have a duty to
ask reasonably under the circumstances.
a. Good Samaritan laws choose to do away with
this
b. EXAM TIP: Assume no Good Samaritan statute
unless otherwise specified
vi. Negligent Infliction of Emotional Distress
1. Plaintiff did not suffer any physical harm; only
emotional harm.
a. If physical harm, then there's an ordinary
negligence case.
b. In physical harm negligence cases, you can
also recover for emotional damages
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2. In any true NIED essay, you're going to need a twotiered discussion:

a. Tier 1: Negligence of the defendant (will be
under one of the rules we have already taken
up: i.e., not reasonably prudent, violated a
statute, fell below industry standard of care,
fell below child standard of care)
b. Tier 2: Plaintiff's entitlement to recover
i. Near miss cases defendant behaving
negligently does not physically injure the
plaintiff but almost did and left the
plaintiff agitated. "One more step and I
would have been a dead man!" Emotion:
Anxiety or fear. You have to show:
1. Defendant's negligence put you in
a zone of physical danger (have to
show that it was a near miss).
2. Subsequent physical manifestation
of the distress.
a. EXAM TIP: Look for clear
physical symptoms
ii. Bystander Cases Injuries to X are
severe (often death; if not death, very
profound personal injury). Plaintiff suffers
emotional distress because of their
sadness about what happened to X.
Emotion is sorrow/sadness/grief.
Must
show two things:
1. Victim was closely related to you.
Includes spouses, children, and
parents of minor children.
2. Must
be
a
contemporaneous
witness close in space and close
in time.
iii. Relationship
cases

Careless
performance by defendant will cause
significant distress. Preexisting business
relationship is required.
1. E.g.,
false
positive
medical
diagnosis by a medical laboratory.
Lab performs test negligently,
using wrong chemicals or confusing
test for someone else's.
This
causes you emotional distress, and
two months later you
2. Breach of Duty
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a. The plaintiff must identify specific conduct that falls short of the
standard of care.
i. Either an affirmative act or a failure to do something.
ii. Write this by using the words "plaintiff will allege that the
unreasonable conduct here was that defendant . . . [insert
fact from the problem]."
iii. In addition to fact, you must give a reason. "Plaintiff will
argue this was unreasonable because . . . [insert reason]."
b. Res Ipsa Loquitor
i. This comes up when there is no factual information
regarding what the defendant did wrong. This comes up in
an information vacuum.
ii. E.g., Plaintiff walks down the street in England, passing by
Defendant's bakery. As he walks by, a wooden barrel of
flour falls and bops him in the head, landing him in the
hospital.
iii. Two elements:
1. The accident as of a type normally associated with
negligence
a. This showing is essentially an argument based
on probabilities. A confession of ignorance and
an appeal to statistics.
b. Often times you need expert testimony to show
that the accident is normally associated with
negligence
2. The accident that occurred would normally have
been due to the negligence of someone in this
defendant's position
a. This means that the accident was in the control
of the defendant
3. Causation (Factual and Proximate)
a. This is the connector between breach and injury/damages. The
standard way to build that bridge is through a "but for"
argument. But, there is also a "proximate/legal cause" element
of foreseeability.
b. "But for" (Cause in Fact) But for an act constituting a breach of
duty, the result would not have happened.
i. Concurrent Causes
1. When several acts combine to cause the injury but
none of the acts standing alone would have been
sufficient, a "but for" test is applied.
ii. Multiple Defendants Merged Causes
1. Each negligent defendant will release a destructive
force into the world. Those forces will come together
and join with each other and then, as a merged force,

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Know these

they will hurt the plaintiff. In that case, you can't use
the "but for" test.
a. E.g., two negligently set fires. Dave is driving
his car and is smoking a cigarette. When
finished, he throws the lit cigarette butt into a
pile of leaves starting a forest fire. A half-mile
away, camper Don packs his bags and leaves
without stomping out his fire. The wind blows
the fire into more leaves, causing a forest fire,
burning down Pete's cottage.
2. Apply the "substantial factor" test.
a. Was each breach capable of causing the harm
all by itself?
b. The test for Causation in Fact is satisfied if
defendant's conduct was a "substantial factor"
in causing the injury.
iii. Multiple Defendants Unascertainable Causes
1. E.g., two hunters each fire a shotgun, but only one
pellet hits the plaintiff in the eye. Who caused it?
Impossible to determine.
2. Shift the burden of proof to the defendants to talk
their way out of the case. Whoever talks his way out
gets to go home without liability. If they can't do it,
though, they're jointly and severally liable.
c. Proximate Cause (Legal Cause)
i. This is the Fairness Requirement plaintiff has to convince
that liability is fair and appropriate
ii. Liability is fair if the result was foreseeable to the
defendant.
iii. Exam Tips: Foreseeability influencers
1. How much time has passed? Generally, the more
contemporaneous, the more foreseeable.
a. Only a guideline, not a take-it-to-the-bank rule.
2. Distance did the consequences take place in the
same area or far away?
3. Weirdness Is what happened something that was
out of the ordinary, peculiar, or surprising? Or is it
routine, conventional, or expected?
4. Exam questions will typically be conditioned on
foreseeability/unforeseeability
iv. Four sets of precedent that, as a matter of law, it's
foreseeable
1. Intervening negligent medical treatment
a. Dave breaks Pete's leg, Pete goes to the
hospital for a cast, and the cast is applied so

19

tight that blood circulation is cut off and the leg

is amputated.
b. Doctors messing up can be foreseeable, so you
have to pay.
c. In that case, the negligent doctor will also be
liable for medical malpractice.
2. Intervening Negligent Rescue
a. Dave breaks Pete's leg. Dave leaves, and Joe
tries to rescue Pete from the middle of the
street. While Joe drags Pete to the side of the
road, Joe's shoulder dislocates. Defendant is
liable for injury to the rescuer
3. Intervening Reaction or Protection forces
a. Dave runs a red light and enters a crowded
intersection, causing a stampede in reaction to
the car. Trying to protect themselves, they
scatter. One is hit by another car and stomped
on by another reacting pedestrian. Defendant
liable for both the car-hit and the stomp injury.
4. Subsequent disease or accident.
a. Dave runs a red light breaking Pete's leg. Pete
gets crutches. Not knowing how to use
crutches, Pete falls and breaks his arm. The
second injury is on the Defendant too.
4. Damages
a. Eggshell plaintiff once defendant has committed the other
elements of the cause of action, even if a modest and minor
breach leads to devastating harm, that defendant is liable for all
harm suffered by the plaintiff.
5. Defenses to the Tort of Negligence Comparative Negligence.
a. Comparative Negligence shown by proof that the plaintiff failed
to exercise proper care for his own safety.
i. Proper care is reasonable care you should behave
reasonably. Proper care can also be obedience to any selfprotective statutes.
1. E.g., Jaywalking.
b. How is Comparative Negligence Determined?
i. Jury looks at the case and assigns fault in a percentage
ii. Instead of recovering all damages, the plaintiff's damages
are reduced by their percentage of fault.
iii. Pure Comparative Negligence even if the plaintiff is
assigned most of the fault, he can still get some damages
1. E.g., plaintiff is assigned 90% of the fault; can still
recover 10% of damages
iv. Partial or Modified Comparative Negligence
1. Plaintiff fault below 50% reduces recovery.
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2. Plaintiff fault above 50% is an absolute bar and the

plaintiff gets nothing
3. E.g., A 70% faulty plaintiff goes home with nothing.
4. E.g., A 30% faulty plaintiff goes home with 70% of
the damages.

Strict Liability
Animals
1. Domesticated Animals
a. Pets and Agricultural Animals
b. There is generally no strict liability
c. You must show that the defendant was negligent.
d. Exam Tip: If you keep a domestic animal but have knowledge of
its dangerous propensities, then the law will hold you strictly
liable.
i. This means danger attributed to the specific creature, not
an attribute generally attributed to the creatures.
ii. E.g., bulls can charge and donkeys can kick. These aren't
iii. E.g., if your dog has previously bitten someone, you now
have knowledge that your dog is a dog of dangerous
propensity.
e. Exception to the Exception:
i. Even if you have knowledge of dangerous propensities, you
will never be liable for someone trespassing on your land.
2. Wild Animals
a. Strict liable always
b. Exam tip: Safety precautions are irrelevant. Examiners will load
a question with safety precautions to try to trick you.
Abnormally Dangerous Activities
1. Two part test pulled straight from the Restatement
a. The activity is one that creates a foreseeable risk of serious harm
even when reasonable care is exercised
i. "We lack the technology to make the activity safe."
ii. We can't get the risk level down low enough.
b. The activity cannot be common in the location where conducted.
It's out of place and out of context.
2. Hallmark abnormally dangerous activity:
a. Blasting any type of explosive
i. Demolition of buildings, in connection with coal mining, it
could be farmers using dynamite to blow up tree stumps
b. Handling and transporting highly toxic/dangerous chemical or
biological materials
i. E.g., ebola virus

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c. Anything involving high dose radiation or nuclear energy

i. Low dose radiation (medical uses) is not abnormally
dangerous
d. Safety precautions are irrelevant
Strict Liability for Defective Products Most heavily tested
1. Plaintiff must show that the defendant is a merchant
a. A merchant is someone who routinely deals in goods of this type.
b. These things are not merchants
i. Casual sellers are the opposite of merchants people
selling their stuff through ebay or craigslist
ii. Service providers are not merchants they make products
available collateral to the service, but the central core of
the transaction is a service transaction.
c. Lessors commercial lessors who lease products are merchants,
and can be held strictly liable.
d. Parties up the distribution chain are merchants and can be held
strictly liable.
i. The retail store is a merchant, but so is the wholesaler and
the manufacturer behind them.
ii. No privity of contract requirement
2. The product is defective
a. Manufacturing Defect
i. The product differs from all the others that came out of the
same factory in a way that makes it more dangerous than
consumers would expect
ii. No safety precautions this is true strict liability
b. Design Defect
i. This is negligence liability in disguise
ii. Only defective when it fails a risk-utility test, meaning that
the danger of the product outweighs its value so that a
reasonable person wouldn't have put it on the market.
iii. The plaintiff must demonstrate that there was a viable
alternative design.
1. "Viable" means that the product would have been
safer than the version actually sold, but no more
expensive and not impractical
2. Teddy bear example: Under a risk/utility approach,
the use of small buttons was a risk that was not
outweighed by its utility (or lackthereof)
iv. Failure to conform to a government regulation is proof of
defectiveness
c. Information Defect
i. The product cannot be physically redesigned, but it still has
some residual risks that are unknown to users but the
product lacks warning about those risks.
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ii. Exam Tip: All warnings are not created equal. Even
though there may be some warning language, the question
may arise whether it is adequate or sufficient. A warning
on page 14 of an instruction manual may not be sufficient.
3. Defect existed when the product left the defendant's hands the
product has not been altered in the chain of custody
a. This element is presumed satisfied if the product moved in
ordinary channels of distribution
4. Plaintiff must be making a foreseeable use of the product at the time of
injury
a. A foreseeable use is not necessarily the intended use. Many
inappropriate uses are nonetheless foreseeable.
i. E.g., you stand on a chair to get an item on a high shelf
and the chair collapses. Is it foreseeable that people stand
on chairs? Yes.
Defenses to Strict Liability
1. Same as above, including comparative negligence

Nuisance
Nuisance unlikely to be an essay topic
1. Interference with your ability to use and enjoy your real estate to an
unreasonable degree.
2. Inconsistent land use adjacent landowner doing something that make
the other's life miserable
a. E.g., smoke belching factory next to an asthma hospital
3. Nuisance can be due to spite. Examples:
a. Loud music all the time
b. Running a crack house
4. Key point no matter what led to the problems, it's whether the degree
of interference is too much. We live in a crowded world, and we have
to tolerate a certain amount of annoyance from our neighbors. It's got
to be something that's a big deal.
a. The nuisance must be "seriously annoying."
b. "Definitely offensive"
5. Multiple Choice balance interests and the seriousness of the
interference

Three More Minor Topics

Vicarious Liability
1. A plaintiff may be able to sue someone with a relationship to the actor
2. Four relationships to be aware of:

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a. Employer/employee Respondeat Superior

i. Employer is liable for torts of employees committed within
the scope of employment
ii. Intentional torts are generally outside the scope of
employment. But there are exceptions
1. If force is part of the job assignment (e.g., security
guard or bouncer), then excessive force makes the
employer liable through vicarious liability
2. If the job involves friction or animosity (e.g., debt
collector or repo man) the employer may be
vicariously liable
3. If the employee is furthering the business of the
employer (e.g., store security guard who stops and
detains every third customer for "spot checks"),
business can be vicariously liable
b. Hiring Party/Independent contractor
i. A business will not be liable for the acts of its independent
contractor
ii. Exception: A business is vicariously liable if an
independent contractor hurts a customer on the property.
c. Automobile Owner/Automobile Driver
i. Owner not vicariously liable for the torts of the driver.
ii. Exception: If you drive an owner's car in order to do an
errand for the owner, then now the owner is liable for the
driver's acts.
d. Parents/Children
i. Parents are not vicariously liable for the torts of their kids.
ii. No exceptions.
3. Final thought about vicarious liability EXAM TRICK
a. E.g., Dave has an eight-year-old son. Dave owns a handgun,
which he leaves loaded on the coffee table. Son picks up the gun
and takes it out to the back yard. Son shoots the gun and hits
someone.
i. Dave is still liable because he can be held liable for his own
behavior under a theory of negligence (recklessness?)
b. E.g., Dave hires George (G for Goon) to be a flower delivery guy.
Dave does not do a background check, which, if he did, would
have revealed that George had four prior violent felonies.
George beats someone up while on a delivery.
i. Dave is still liable on a theory of negligent hiring
c. E.g., Dave gives his car keys to a drunken friend who Dave
knows is drunk. The drunken friend gets into an accident and
hurts Paul.
i. Dave is liable to paul on a theory of negligent entrustment.
4. Adjustment between codefendants

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a. Three defendants, (Tom, Dick, and Harry) all found liable. Tom
pays the full amount. Tom wants to collect from Dick and Harry.
i. Comparative Contribution
1. The jury decides percentages to the codefendants.
2. Tom bears the risk of insolvency
3. Exceptions two cases where the out-of-pocket can
get all the money back, known as Indemnification
a. Vicarious Liability If you have been held
vicariously liable and the active tortfeasor is in
the action, the vicariously liable person can
recover from the active tortfeasor via
indemnification
b. Products liability where the out-of-pocket
money defendant is a retailer, the retailer can
recover from the manufacturer.
5. Loss of Consortium Claim
a. In any case where the victim is married, no matter the tort, the
uninjured spouse is given a separate cause of action in addition
to the actual victim.
b. That cause of action is said to be derivative; any defenses that
could be asserted against the actual victim can be asserted
against the uninjured spouse
c. Types of Consortium
i. Having to pay outside people to come in and do things that
the injured spouse normally did
ii. Loss of society loss of a companion. You get this in a
consortium claim
iii. Loss of sex pay me because now I'm not getting laid.

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