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Intentional Torts Defenses

False Imprisonment
Intentional Infliction of Emotional Distress (IIED)
Trespass to Land
Trespass to Chattel
Consent (Express or Implied)
Protective Privileges (SD, DO, DP)
Necessity Defenses
- Public Necessity (absolute)
- Private Necessity (limited)
Recapture of Chattels
NB: Transferred intent (from person to person OR
from tort to tort) can apply w/ Assault, Battery, False
Imprisonment, Trespass to Land, and Trespass to
Damages are required for IIED (physical harm not
reqd), Trespass to Chattel, and Conversion
Defamation Defenses
Libel (Letter, but includes TV / radio broadcasts)
Slander (Spoken) Slander per se and not per se
- Statement re: matter of public concern or a public
figure or official? (2 more es)
* Hypo may also implicate False Light or Disclosure
Defamation Privileges
- Absolute Privileges (spouses;
govt officials/officers)
- Qualified Privilege (public
interest in encouraging candor
e.g. references, LORs)
Privacy Torts Defenses
False Light (**DP)
Disclosure (**DP, *NW)
Appropriation (*NW)
Intrusion to Seclusion
NB: Ps damages can be for just emotional damages
(i.e. P doesnt have to show monetary loss).
NB: Truth is not a defense for these.
NB: Privacy actions do not survive death.
Consent (for all 4)
** Defamation Privileges (FL and D
- Absolute Privileges (spouses;
govt officials/officers;
statements made in judicial
proceedings by judge / jurors /
counsel / witness / parties)
- Qualified Privilege (public
interest in encouraging candor
e.g. references)
* Newsworthiness Exception (A and
D only)
- an exception only (i.e. not an
affirmative defense)
Economic Torts
Intentional Misrepresentation (Fraud, Deceit)
Negligent Misrepresentation
Intentional Interference with Business Relations
Nuisance Defenses
Nuisance Contributory Negligence (available if
P asserts a negligence theory and acted
negligently in creating the nuisance)
Strict Liability & Products Liability Defenses
Claims for Injuries Caused by Domesticated
Animals (if prior knowledge of vicious propensities;
but not if dog bites trespasser on your own land)
Claims for Injuries by Wild Animals
Strict Liability for Abnormally Dangerous
Strict Liability for Products
- Remember: Products liability can be pursued
under multiple theories: (1) strict liability; (2)
negligence; (3) breach of warranty; etc. So
strict liability is just one option!
Assumption of Risk (abolished by most
Comparative Negligence (only if the JX
applies its comparative negligence rules
to strict liability)
NB: If P was a Trespasser
- Trespassers cannot generally
recover under SL when injured
by Ds animal(s).
Negligent Infliction of Emotional Distress (NIED) Defenses
Of the ~34 torts Qs on MBE, just under 1/3 will be on intentional torts
A. 2 Impt. Principles
1. In deciding whether a P has satisfied an element of a claim, ignore any
extreme sensitivity of the particular P.
2. There are no incapacity defenses in intentional torts.
(1) e.g. a child / mentally ill / drunk person can be held liable for
battery and any other intentional tort
B. Battery (2 elements)
1. E1: The D must commit a harmful or offensive (unpermitted / objective
std.) contact / touching;
2. E2: The contact must be with the Plaintiffs person (which includes
anything the P is holding or anything connected to the P).
C. Assault (2 elements)
1. E1: The D must place the Plaintiff in reasonable apprehension
(1) Rule: Apprehension doesnt require fear; just means that you had
knowledge of the immediate battery.
(2) Rule (Unloaded Gun Scenario): If its an idle threat that couldnt
have been carried out (e.g. unloaded gun), then if the Plaintiff
knew that it was an idle threat / unloaded gun, then P has no claim;
but if P didnt know, and it was reasonable to expect that the gun
was loaded, then P does have a claim)
2. E2: The apprehension must be of an immediate battery.
(1) Rule: For immediacy, you need overt conduct. Words alone are
not enough. (The necessary conduct could be a menacing gesture,
the pulling out of a weapon, etc.)
(2) Rule: If there is conduct, words can negate immediacy. (e.g. D
shakes his fist in Ps face but says, If you werent my best friend,
Id punch you. / e.g.2. D takes out a gun, If you dont have my
money by 5 pm, Ill be back to shoot you)
D. False Imprisonment (2 elements)
1. E1: The D must commit an act of restraint;
(1) Rule: A credible threat can be an act of restraint. (e.g. D takes out
a gun and says, If you leave this room within the next 30 minutes,
Ill shoot you is enough)
(2) Rule: An omission can be an act of restraint provided that there
was a preexisting duty between the D and P. (e.g. P is wheelchair-
bound and requires assistance to get on and off plane, but after
everyone gets off the plane, the crew members forget about her and
do nothing, so even though plane door is open, P is stuck there)
(3) Rule: The P must know of the confinement or be harmed by the
confinement for there to be false imprisonment. (i.e. so if P is
oblivious to the confinement, theres no false imprisonment)
2. E2: The P must be confined to a bounded area.
(1) Rule: An area is bounded even though its not marked by
boundaries (like walls or fences). The boundary can be defined by
your words (e.g. If you leave the park, Ill shoot you the
bounded area is the park)
(2) Rule: An area is not considered bounded if there is a reasonable
means of escape that the P can reasonably discover. If the only
way out is harmful, humiliating, dangerous, or disgusting, then it
doesnt count as a reasonable way out. (e.g. P is locked in the
basement, and the basement has a rat-infested sewer pipe that P
could use for an escape this is still false imprisonment)
(3) Rule: The duration of the confinement can be very short for it to
still be false imprisonment.
o NB: You dont need to show damages for False Imprisonment; the duration
can also be very short to still be False Imprisonment.
E. Intentional Infliction of Emotional Distress (2 elements)
Note: Unlike the other intentional torts, for THIS tort, D acting recklessly is
enough for D to be liable.
1. E1: The D must engage in outrageous conduct;
(1) Rule: Conduct is outrageous if it exceeds all bounds of decency
tolerated in a civilized society.
(2) Rule: Mere insults are not outrageous. (BUT note that insults, as
part of a packaged deal, can be a part of outrageous conduct.)
(3) Markers of Outrageous Behavior:
(i) The conduct in question is continuous in nature (can push
closer to being outrageous conduct);
(ii) The D is a common carrier or an innkeeper (i.e.
transportation company or hotel/motel) (since these Ds are
understood that theyre supposed to treat ppl courteously);
(iii) The P is a member of a fragile class (e.g. P is a child; P is
an extremely elderly person; P is a pregnant woman);
(iv) Deliberately targeting anothers known sensitivities
2. E2: The P must suffer severe emotional distress.
(1) Rule: There is no particular evidentiary showing required to
establish severe emotional distress. (i.e. you dont have to show
that youre on meds, that you saw a doctor, that youve missed
work, that you have physical symptoms, etc. etc.)
(2) TIP: If the question includes a ton of outrageous D behavior but
then includes something like: Pamela was mildly annoyed /
briefly irritated / slightly peeved about Ds conduct that
negates the second element.
Three Property-Related Intentional Torts: (i) Trespass to Land; (ii) Trespass to Chattel;
(iii) Conversion
F. Trespass to Land (2 elements)
1. E1: The D must commit an act of physical invasion;
(1) 2 Ways to Commit an Act of Physical Invasion:
(i) D enters Ps property (Note: The D need not be aware that
he crossed into Ps land; its still physical invasion if its a
mistake (i.e. D didnt know))
(ii) D throws something into Ps land (Note: But an intangible
substance, like noises or lights or odors, dont count for a
trespass; the thing that D throws into Ps land must be
2. E2: Ds act must interfere with Ps exclusive possession of land.
(1) Rule: The proper P is whoever is in legal possession of the land
who is not necessarily the owner.
(2) Rule: Your interest in the land includes the air above and the soil
below (to a reasonable distance), so interference with those will
also be actionable trespasses.
G. Trespass to Chattels and Conversion
Both torts involve some form of interference with Ps possessory interest in personal
1. Trespass to Chattels civil version of vandalism (deliberate damage)
(1) If the interference is relatively minor, then use trespass to chattels
(2) Remedy for Trespass to Chattels: Cost of repair of the item.
2. Conversion civil version of theft
(1) If the interference is significant, then use conversion
(2) Special Remedy for Conversion: Full market value of the item
not merely the cost of rental or repair.
H. Affirmative Defenses to Intentional Torts (3): 1. Consent, 2. Protective
Privileges, 3. Necessity Defenses
(1) Q: Did the P have legal capacity? Rule: Only someone with legal
capacity can give valid consent. (e.g. drunk guy who says go
ahead and hit me doesnt qualify as valid consent) [drunk person;
developmentally disabled person; child]
(i) But Note: A child or developmentally-disabled person can
consent to things that theyre capable of understanding.
(e.g. 2 boys can consent to wrestle if they agreed to wrestle;
its age-appropriate)
(2) 2 Kinds of Consent:
(i) Express consent a declaration granting the D permission
to behave a certain way that would otherwise be a tort;
(1) Exception **: Express consent is not valid if it was
obtained fraudulently or through duress.
(ii) Implied consent
(1) Implied consent by custom (i.e. P goes to a place or
engages in an activity where certain invasions are
routine, then it is assumed that P consented to those
(2) Ds reasonable interpretation of Ps objective
conduct and surrounding circumstances (i.e. Ps
body-language consent)
(3) Scope Rule: If D exceeds the scope of consent, D is still liable for
the intentional tort. (e.g. D doctor gets consent to do surgery on
leg but then D doctor also does surgery on another part of the body
that isnt close to the leg counts as battery)
2. THE PROTECTIVE PRIVILEGES (Self Defense; Defense of Others;
Defense of Property)
(1) Timing Question: You may respond to a threat only when the
threat is imminent or in progress. You cant use these defenses if
the threat is over. No revenge!!!
(2) Need a reasonable belief that the threat was genuine (i.e. D doesnt
lose the privilege if D made a reasonable mistake)
(3) How much force was used? The response was no more than
necessary (i.e. D can only use proportional force).
(i) Rule: You may NEVER use deadly force to merely protect
your property.
3. THE NECESSITY DEFENSES (2 of these, and they only relate to the 3
intentional property torts)
(1) Public Necessity Defense
(i) Public necessity arises when D invades Ps property in an
emergency to protect the community as a whole (or a
significant group of people) (i.e. basically involves
situations where D tries to save the day in an emergency
and commits intentional property torts in the attempt to
save the city / people D will be able to use the public
necessity defense)
(2) Private Necessity Defense
(i) D invades Ps property interest to protect an interest of his
own. [is only a LIMITED defense]
(1) Rule: In a private necessity defense, D remains
liable to pay for the actual damage to the property
(i.e. compensatory damages);
(2) Rule: A private necessity D is not liable for
nominal or punitive damages.
(3) Rule: As long as the emergency continues, the P
cannot throw the D off the land (i.e. cannot evict or
eject D off the land). If P throws D out, then P will
be liable to D for any harm that was caused to D as
a result.
(4) E.g. D is a hiker and theres a sudden blizzard, so D
breaks into a lone farmhouse and takes shelter there;
the owner, P, sues D for trespass to land and so D
will pay for the window; D will still have to pay for
the broken window
A. 3 Elements of Defamation: [DPD*P]
1. E1: Defamatory Statement: D must make a defamatory statement
specifically identifying P;
(1) Rule: A statement is considered defamatory when it adversely
affects reputation.
(2) Rule: Mere name-calling is not considered defamatory. You
normally need an allegation of fact that reflects negatively on a
trait of the persons character (e.g. dishonesty, incompetence,
disloyalty; immorality).
(3) Rule: To identify P, you need not identify P by name. As long as
you say enough to make it reasonably easy to identify the specific
(4) Rule: In the U.S., P must be a living person to be defamed. (e.g.
Michael Jacksons estate wouldnt be able to sue you for
defamation if you started saying that M.J. sexually abused a bunch
of kids).
2. E2: Publication: There must be publication of that statement.
(1) Rule: This means that the defamatory statement must be shared
with at least one other person other than the P. (so just 1 person
beyond the P is enough for D to be on the hook)
(2) Rule: Publication can be accidental / inadvertent / negligent. It
doesnt have to be intentional.
3. E3: Damage: There must be damage to Ps reputation.
(1) Libel general damages are presumed
(i) i.e. P can recover damages for the general injury to his
reputation w/o offering any proof
(2) Slander
(i) Damages are presumed ONLY if Slander Per Se
(ii) If Slander Not Per Se, then P must prove a specific
economic loss as damages; if P cant, he can only recover
nominal damages.
4. **E4: Plaintiffs Status will determine what P has to show for Ds
fault w/ re: to falsity:
(1) If P is a public figure or public official:
(i) P must show that when D made the statement, D knew it
was false OR made it w/ reckless disregard for the truth
(2) If P is a private person / figure:
(i) If Ds statement was re: a matter of public concern P
must show D was negligent w/ re: to falsity of statement.
(ii) If statement had to do w/ private concern P doesnt
have to prove anything further; just Elements 1 - 3
B. Two Forms of Defamation (Libel and Slander)
1. Libel: the defamatory statement is written (in a letter, email, etc.)
(1) Note: TV broadcasts and radio broadcasts are considered libel.
2. Slander: an oral / spoken defamatory statement
(1) Slander per se: for this one, you dont have to offer any evidence
of damages; slander per se involves any statement that falls within
4 topics:
(i) statement re: Ps business or professional reputation;
(ii) statement that P has committed a serious crime (of moral
(iii) statement that imputes unchastity on a woman;
(iv) statement that P has a loathsome disease (e.g. leprosy;
venereal disease)
(2) Slander not per se: is the only case where you have to prove
damage to get to the jury
(i) For damage, you have to prove economic harm (e.g. you
lost your job, nobodys come to your restaurant, etc.)
C. Special Case: Where the Statement Bears on a Matter of Public Concern
1. E.g. whether or not a mayor is taking bribes; whether or not an athlete is
taking performance-enhancing drugs
2. In these cases, there are 2 extra elements (so 5 total):
(1) Falsity: The P must show that the statement is false.
(2) Fault:
(i) If the P is a public figure, then P must show that D knew
the statement was false and made it anyway or that D
recklessly disseminated the falsehood (actual malice or
(ii) If the P is a private figure, it is sufficient to show that D
disseminated the falsehood negligently.
D. Affirmative Defenses to Defamation (3): 1. Consent, 2. Truth, 3. The
Defamation Privileges (Absolute and Qualified)
1. Consent
2. Truth
(1) Note: Remember, D bears the burden of proof on this b/c its an
affirmative defense.
3. Defamation Privileges
(1) Absolute Privileges: [based on the identity of D]
(i) Spouses: If a married person says something defamatory
to their spouse, that doesnt count as defamation.
(ii) Federal and State Govt Officers and Officials,
Including Legislative and Executive Officials (in their
official capacity): also applies to legislative and executive
officials, so if they read something into the record on the
floor of the legislature, they are absolutely privileged, even
if you show malice, abuse, etc.
(iii) Judicial Proceedings Context: All statements made by the
judge, jurors, counsel, witness, or parties in judicial
proceedings are absolutely privileged.
(2) Qualified Privilege:
(i) Arises when there is a public interest in encouraging
candor. (e.g. references / recommendations; statements
made to the police)
(ii) 2 Reqts for Qualified Privilege:
(1) D must have a reasonable, good faith basis to have
made the mistaken statement; and
(2) D must confine statement(s) to stuff thats relevant
(e.g. it wouldnt be relevant for a professor giving a
recommendation to add at the end that the student
has leprosy).
III. PRIVACY TORTS ((1) Appropriation; (2) Disclosure; (3) Intrusion; (4) False Light)
A. Appropriation
1. D uses the Ps name or image for a commercial purpose.
(1) E.g. Cereal manufacturer puts Tom Bradys face on their box.
(2) Caution: This cause of action isnt limited to celebrities.
2. Newsworthiness exception applies (i.e. so if newspaper puts picture of
Tom Brady on cover, they wont be liable).
3. Caveat: The mere use of a personalitys name in a TV show or magazine
story, even if motivated by profit, isnt enough for liability. Must show
evidence that the name was used in connection with the promotion or
advertisement of the product, service, or program.
B. Intrusion Upon Seclusion
1. An invasion of the Ps seclusion in a way that would be highly offensive
to the average person
(1) E.g. wiretapping, secret video surveillance, using binoculars to
peer into someones home.
2. Caution: P must be in a place where they have a reasonable expectation of
privacy (i.e. P cant be in a public place).
3. No newsworthiness exception
C. Disclosure
1. The widespread dissemination of confidential information about P that
would be highly offensive to an average person
(1) E.g. receptionist mails your medical records to everyone at your
law firm
(2) Newsworthiness exception applies (i.e. so if newspaper were to
publish the medical records or other private facts about X,
newspaper not liable).
(3) Caution **: The information must be truly private. (e.g. P is a gay
man, but even though his friends and personal circles know this, P
isnt out at work; on day, a work person sees P at a rally holding
a sign saying, Im gay and dont want to be discriminated
against. The work person tells everyone at work. This doesnt
count as Disclosure)
D. False Light
1. Widespread dissemination of a material falsehood about P that would be
highly offensive to an average person.
2. No newsworthiness exception
3. False Light vs. Defamation
(1) The same conduct often gives rise to both Defamation and False
Light. However, the damages you get are different.
(i) In Defamation P gets economic damages
(ii) In False Light P gets damages for the social / emotional
harm (i.e. no one wants to hang out with P anymore, etc.).
(2) False Light can also be broader than Defamation because the
material falsehood need not be defamatory.
(i) E.g. D tells everyone that P is a devout Catholic, but P is
Jewish. False Light but not Defamation.
(3) Like with Defamation, if the published matter is in the public
interest, then P must show malice or recklessness on the part of D
4. A fact will be deemed to present P in a false light if it attributes to him:
(1) Views P does not hold, or
(2) Actions P did not take.
E. Affirmative Defenses to the Privacy Torts (2): 1. Consent (for all 4), 2. the
Defamation Privileges (only for Disclosure and False Light)
1. Consent (defense to all 4)
2. The Defamation Privileges (both Absolute and Qualified)
(1) But these only apply to Disclosure and False Light
IV. Three Strict Liability Causes of Action
Strict Liability: P can establish Ds liability for Ps injuries without having to prove
that D acted negligently.
Remember: No amount of due care will relieve D of liability under strict liability.
Defenses to Strict Liability:
o assumption of risk (abolished by most states);
o comparative negligence rules (if the JX applies its comparative negligence rules
to strict liability)
A. Claims for Injuries Caused by Animals
1. Claims for Injuries by Domesticated Animals (e.g. pets and livestock):
(1) General Rule: You are not strictly liable for an injury caused by
your animal.
(2) Exception: You will be strictly liable if you have prior knowledge
of their vicious propensities. (e.g. if your dog has previously bitten
someone, you have knowledge)
(i) Exception to Exception: You will not be strictly liable if
your dog bites a trespasser on your own land.
2. Claims for Injuries by Wild Animals:
(1) General Rule: You are strictly liable for any wild animals that you
keep and that cause injury.
(2) Note: Even if D puts a million protective measures, that doesnt
matter. Strict liability means that youre liable, no matter what.
B. Strict Liability for Abnormally Dangerous Activities
1. 2 Part Test for Abnormally Dangerous Activities:
(1) The activity must be one that causes a foreseeable risk of serious
harm to persons or property even when reasonable care is
exercised; and
(2) The activity must be uncommon in the area / community where D
pursues the activity.
o Often arises with explosives, toxic, and/or biohazardous materials;
e.g. blasting with dynamite; anything involving hazardous
chemicals or biological materials; anything involving high-dose
radiation and nuclear activity.
2. Remember: The injury must result from the abnormally dangerous nature
of the activity.
3. In these cases, D is strictly liable for harm caused by the activity.
C. Strict Liability for Products ****
o General SL for Products Rule: A commercial seller is strictly liable for
any defective condition thats unreasonably dangerous that was existing at the
time of sale.
o Impt Note: If someone gets injured by a product, they may have multiple
claims. They may have (1) a strict liability claim; (2) a negligence claim; (3)
a breach of warranty claim, etc. So read the call of the Q carefully.
o Who can be Strict Products Liability P? Buyers of the product, buyers
family, friends, employees, and any foreseeable bystanders. There need not
be privity btwn P and D.
Remember, if P is a bystander who was injured after trying to rescue,
he is considered to be a foreseeable bystander (since danger invites
rescue) and can recover for injury on strict products liability.
o Who can be Strict Products Liability D? Any commercial seller thats on the
distribution chain (retailer, wholesaler, distributor, manufacturer)
o Remember: One of the elements of a prima facie case for products liability
based on strict liability is causation of some harm to P by a defective product.
1. 4 Elements for Strict Liability Products:
(1) E1: D was a merchant (someone who routinely deals in
products of this type);
(i) Rule: Casual sellers (like in garage sale) are not merchants.
(ii) Rule: Service providers who sell, as part of their services,
certain products are not considered merchants.
(iii) Rule: Commercial lessors (who rent goods, like car
rentals) are considered to be merchants.
(iv) Rule: Every entity in a distribution chain is a merchant,
and every entity can be held strictly liable. P doesnt have
to necessarily sue the entity with which it dealt directly. P
can go behind the retailer and sue the wholesaler and the
manufacturer. [i.e. there is no privity requirement in
Strict Liability]
(2) E2: The product was defective;
(i) 3 Kinds of Product Defects:
(1) Manufacturing defect a product has a
manufacturing defect if it differs from all the other
products that came off the same assembly line in a
way that makes it more dangerous than consumers
would expect (i.e. the 1 in a million)
(2) Design defect a product has a design defect if P
can show that there was another way that the
product couldve been built that meets 3 conditions:
(1) theres a safer possible design; (2) that safer
design must be cost-effective (the same or only a
teeny more expensive); and (3) the alternative
design must be practical (i.e. it cant defeat the
purpose of the product).
(A) Note: Failure to conform to a government
regulation proves the design defect.
(B) Note 2: If a product has a design defect, you
cant avoid strict liability just by slapping a
warning on it.
(3) Information defect a product has an information
defect if it has risks that cannot be designed out and
the risks are not apparent to consumers and the
product lacks adequate warning.
(A) An adequate warning has to be prominent
and call the consumers attention. The
warning may have to be bilingual. A
warning may have to use pictures instead of
(3) E3: The product must not have been altered since leaving the
hands of the D (i.e. the defect existed when it left Ds hands).
(i) If the product moved in ordinary channels of distribution,
theres a presumption that the product was not altered (i.e.
that the defect existed when it left Ds hands). Thus, this
presumption shifts the burden to the D.
(4) E4: The P must be making a foreseeable use of the product at
the time of the injury.
(i) Rule: P doesnt have to be using the product for the
intended purpose. As long as it was a foreseeable use of
the product, thats enough. (e.g. standing on a chair to
reach something is a foreseeable use of the chair)
2. Affirmative Defense for Strict Liability 1: Comparative
(1) Comparative Responsibility: any P fault will result in assignment
of a percentage and will reduce Ps recovery
(2) Assumption of Risk:
(i) Can be a complete defense to strict products liability.
** Negligence is by far the most impt topic for the bar exam in torts and most heavily
tested. **
4 Elements: [Duty, Breach, Causation, and Damage]
1. D had a duty;
2. D breached that duty;
3. Causation ((i) factual cause and (ii) proximate cause);
4. Damage.
A. Element 1: DUTY [most impt element]
1. Duty the obligation to take risk-reducing precautions.
2. To whom is a duty owed?
(1) To foreseeable victims. (Thus, an unforeseeable victim always
loses a Negligence case.)
E.g. Remember Palsgraf lady at RR station was wayyy
too far away for D to think that she was going to get hurt.
(i) Exception: Rescuers A rescuer is owed a duty of care.
Rescuers are always foreseeable victims.
(2) Privity of contract is not required to find liability for negligence. It
only matters that P was a foreseeable plaintiff.
3. How much care do you owe?
(1) You must exercise the care that would be exercised by a
reasonably prudent person acting under similar circumstances.
(2) The reasonably prudent person is an OBJECTIVE standard, so we
make no allowances for Ds particular, non-physical shortcomings.
(i) Note: Its an inflexible standard, and it applies to everyone
even if theyre stupid people, mentally disabled people,
novices, amateurs, etc. So the bar exam will load up the Qs
with these people, but you must remember that just b/c the
Ds have those shortcomings doesnt change the fact that
theyre held to the reasonable prudent person standard in
negligence. You should never pick the choice that says
theyre not liable b/c theyre doing the best they can.
(3) Exception: If D has any superior skill or knowledge, the standard
becomes a reasonably prudent person with that superior skill or
(4) Exception: The standard DOES take into account Ds physical
characteristics (if the facts make them relevant). So if the facts say
that D is blind and the blindness is relevant, then the standard
becomes: ordinary and reasonable care that a person with the Ds
disability would have exercised / reasonably prudent blind person.
4. 6 Special Duty of Care Standard Rules (to use instead of the General,
Reasonably Prudent Person Standard):
On the essay exam, if these dont apply, then you would write:
Because none of the special duty of care standards are at issue here,
the court will apply the general standard of reasonably prudent person
acting under similar circumstances.
(1) Negligence Claims Against Children
(i) Children under the age of 5 are legally incapable of
(ii) Children from age 5 age 18 are held to the standard of a
child with similar age, experience, and intelligence acting
under similar circumstances. [very flexible standard, very
(1) Exception: When a child is engaging in an adult
activity, you use the general reasonably prudent
person standard. (e.g. operating a vehicle w/ an
engine a car, tractor, jet ski, snowmobile, truck)
(2) The Standard of Care for Professionals (i.e. Doctor, Lawyer,
Architect, Accountant, etc.)
(i) Rule: A professional is held to the care of the average /
reputable member of his profession performing similar
services. The custom of the profession (nationally) sets the
standard of care. [national standard of care]
(1) For the most part, youll need an expert to explain
what is customarily done in the profession
(ii) 2 Kinds of Errors Doctors Typically Make: (1) an error in
execution [Note: these are easy cases b/c the avg doctor is
careful and doesnt commit errors in execution]; and (2) an
error in a diagnosis or a treatment plan [these are the hard
cases b/c they involve judgment, etc.]
(1) Damages Note: If a doctor negligently misdiagnoses
a Plaintiff, and that causes the Plaintiff physical
injury (e.g. because their physical medical condition
continued), that is enough to meet the damage
requirement of negligence.
(iii) Generally, a doctor has a duty to inform the patient of
material risks of a procedure; a material risk is a risk that a
reasonable P would want to know.
(3) Premises Liability Rules
(i) The Situation: When someone enters a piece of real estate
or land (land), and while there, they get hurt by a
dangerous condition on the property. The plaintiff is the
entrant (entrant), and the possessor of the land is the
(ii) Q: What duty does the possessor of the land owe the
entrant to protect the entrant from dangerous conditions on
the property?
4 Standards for Premises Liability, Depending on Type
of P Entrant Were Dealing With:
(1) Undiscovered trespassers on the land:
(A) Duty: The possessor of the land does not
owe a duty of care to these entrants, so this
P always loses the case.
(2) Discovered or anticipated trespassers: includes
ppl that the possessor knows or should know would
be on the land (e.g. when the exam says that there
have been trespassers in the past, like ppl who used
your land to take a shortcut, etc.).
(A) Duty: The possessor is obligated to protect
the discovered or anticipated trespasser Ps
only from those conditions on the land that
meet a 4-part test:
1. Theres only a duty if the condition is an
artificial condition (a condition that
was built or constructed by humans).
[So a possessor will never be liable to a
P who got hurt by a natural condition on
the land, such as icy conditions in Ds
2. The condition must be highly
dangerous [so a moderately dangerous
condition will not lead to any liability]
3. The condition must be concealed from
the trespasser [so no liability for D if
the condition was open and obvious]
4. The condition must be one of which the
D possessor had prior knowledge
Summary: With respect to any
discovered / anticipated trespasser P,
D owes only a duty to protect them
from any known, man-made death
traps on Ds land.
(3) Licensees: Ps who enter Ds land with permission
but do not confer any economic benefit on the
possessor. (e.g. a social guest, ppl who come to
your door to sell things or Jehovas Witnesses or
politicians seeking signatures, etc.)
(A) Duty: The possessor must protect these Ps
from a condition that is (i) concealed and
(ii) of which D had prior knowledge.
(4) Invitees: Ps who enter Ds land with permission
and confer an economic benefit (e.g. customer of a
business) or the property is open to the public at
large (e.g. person at the airport picking up a friend,
person at a church, etc.).
(A) Duty: The possessor must protect these Ps
from a condition that is (i) concealed and
(ii) of which D had prior knowledge or
could have discovered through a
reasonable inspection.
Impt Note: Even if P is initially a licensee or invitee, Ps legal
status w/ re: to the property can change if P loses the status by
exceeding the scope of invitation i.e. if P goes onto a portion
of the property where their invitation cannot reasonably be said
to extend.
Special Rules re: Premises Liability
o Firefighters and police officers can never recover for
an injury that is an inherent risk of their job. [For
firefighters, its an inherent risk for them to get burned,
no matter how.]
o Attractive Nuisance Doctrine: A trespassing child is
treated more generously than adult trespassers. A
possessor of land owes a duty of reasonable prudence to
protect them from artificial conditions on the land.
TEST: Possessor of land is liable for injury to
trespassing children if:
(1) An artificial, dangerous condition exists;
(2) D knows or should know that children are
likely to trespass / are on the land;
(3) the child (subjectively) fails to realize the
risk or appreciate the danger involved w/ the
artificial condition; and
(4) the burden of protecting children from the
risk of harm outweighs the utility of
maintaining the artificial condition.
(So look out for kid magnets swing sets,
pools, trampolines on your land; if D has this,
then he/she should have taken reasonable
prudence to protect the children)
o Landowners Duty re: his Activities on his Land:
A landowner has a duty to exercise reasonable
care with respect to his own activities on the
land and to control the conduct of others on his
property (i.e. licensees/guests or invitees) so as
to avoid unreasonable risk of harm to those
outside the property.
2 Ways Premises Liability Ds Can Satisfy their Duty:
o (1) D fixed the problem / dangerous condition
o (2) D gave P a warning (e.g. putting those yellow A-
shaped signs that say: Warning Wet Floor)
Note: So if an answer choice says something
like, Deb is not liable to Pete b/c Deb gave
Pete a warning about the icy steps / Pete can
recover unless Deb gave him a warning thats
a potentially good answer choice.
(4) Statutory Standards of Care (Negligence Per Se a presumption
of negligence)
(i) Scenario: P borrows a statute and says that since D
violated that statute, this is conclusive evidence that D
breached his duty of care. To successfully borrow the
statute, P must show 2 things:
(1) Type of accident that occurred was the type that the
statute was trying to prevent;
(2) P was in the class of persons that the statute was
trying to protect.
(ii) Two Exceptions [where the statutory violation is excused
and doesnt create a presumption of negligence]:
(1) There was an emergency, making Ds compliance
with the statute more dangerous than violation of
the statute.
(A) E.g. Dave crosses a double-yellow line to
avoid hitting a little girl and then hit Ps car.
You dont let P borrow the statute.
(2) Statutory compliance was impossible.
(A) E.g. Dave crossed a red light when he had a
heart attack. You dont let P borrow.
(iii) Remember: If P fails the 2-part test, it just means P cant
borrow the statute to establish that D violated his duty of
care, but it doesnt mean that you end your analysis!!! It
just means that youll have to use the reasonably prudent
person standard in the analysis.
(5) Common Carrier / Innkeeper:
Common carriers and innkeepers owe its passengers / guests a
high duty of care and therefore would be liable for a slight
(6) Duties to Act Affirmatively
(i) General Rule: There is no duty to rescue.
(1) E.g. the Olympic swimmer has no duty to rescue the
drowning baby.
(ii) 3 Exceptions: [where D has an affirmative duty to act
reasonably under the circumstances]
(1) Exception 1:
(A) If there is a preexisting relationship btwn D
and P (e.g. business/invitee;
employer/employee; common
carrier/passenger; 2 friends out to dinner
together), there is a duty to act reasonably
under the circumstances, which might
involve a duty to act.
When the bailment is for the sole benefit of the
bailee (a gratuitous bailment), the bailor has a
duty to inform the bailee of known dangerous
E.g. if D let P borrow his car for P to do
his own thing (i.e. gratuitous bailment),
D has a duty to inform P of any known
dangerous defects or conditions in his
car, so failure to ensure that P was made
aware of that is negligence.
(2) Special Rule: Rescuing D: If D chooses to rescue,
D has to do so reasonably. So D may be liable if he
causes harm to P in Ds attempt to rescue P.
(A) Exception Good Samaritan Laws (passed
by some states) but on the MBE, assume
that there is NO Good Samaritan Law,
unless exam Q expressly states that there is.
(3) Exception 3: Even if Ds actions werent
negligent, if Ds actions placed P in peril or caused
P injury, D has a duty to make reasonable efforts to
rescue the imperiled P or render aid to P.
(6) Negligent Infliction of Emotional Distress
(i) Impt Note: NIED only arises when (i) D has violated some
other duty of care and (ii) P has not sustained any direct
trauma to his body.
(ii) Three Scenarios for NIED:
(1) Near-Miss Fact Pattern:
(A) The negligent D doesnt inflict trauma on
Ps body but almost did. (e.g. D runs a red
light and misses pedestrian by 1 foot).
(B) P can recover if P can show that (1) P was in
the zone of physical danger and (2) P must
have subsequent physical manifestations of
his stress
(2) The Bystander Case:
(A) The negligent D seriously injures or kills
TP, and P is upset about the injury or death
of TP.
(B) P can recover if P (1) is a close family
member of TP (parent, child, or spouse) and
(2) sees it while it happens.
(C) Note: The Bystander Case brought by P is a
separate claim from the valid claim of the
TP who is killed, as TPs estate can bring a
Wrongful Death Action against D.
(3) Relationship Cases:
(A) D and P are in a pre-existing business
relationship and careless performance of the
business will foreseeably distress the
(B) E.g. Medical patient gets an erroneous lab
result from a medical lab saying he has
cancer or HIV, causing patient P lots of
(C) E.g. Funeral hall loses the body
B. Element 2: BREACH
1. P must identify, with specificity, what D did wrong or failed to do and
explain why a reasonable person would have done it differently.
2. Res Ipsa Loquitur
(1) Res Ipsa Loquitur allows the trier of fact to infer negligence simply
from the fact that a particular injury occurred.
(2) It is used by a P who lacks info and cant pin-point what D did
wrong / how D breached his duty against P.
(3) P must show 2 things to use Res Ipsa Loquitur:
(i) That the accident that occurred is a type that would not
normally occur unless someone was negligent; and
(ii) An accident of this type would normally be due to the
negligence of someone in Ds position.
(1) This is shown by showing that D had exclusive
control over the injury-causing instrumentality.
(2) Note: Res Ipsa will normally not apply when more
than one party may have been in control of the
instrumentality causing injury.
(A) Exception: Res ipsa is allowed to be used in
a surgical setting against a team of
physicians (like where one leaves a sponge).
(4) Effect of Res Ipsa Loquitur: Is used to get you to the jury on the
issue of breach but doesnt necessarily mean P will win on the
negligence claim.
(i) But DOES mean that tort P will avoid a Ds motion for a
directed verdict, since Res Ipsa will allow an inference that
there was BOTH a DUTY and a BREACH.
C. Element 3: CAUSATION (i. Factual Causation; then ii. Proximate
1. Factual Causation
(1) P must establish a link btwn Ds breach and Ps injury. (Note:
Defendants breach is whats the factual cause not the D) (Note
2: Always speak of a factual cause, not the factual cause.)
(2) The But-For Test:
(i) P must convince us that but-for Ds breach, P wouldnt
have been injured.
(ii) Exceptions:
(1) Mingled Causes: 2 destructive forces mingle
together (e.g. 2 fires meet up )
(A) Here, use the Substantial Factor Test: A
breach is a substantial factor if it was
capable of causing the injury by itself. (and
if theres multiple Ds who breached and
meet this test, then those Ds will be held
jointly and severally liable to P)
(2) Unascertainable Causes: e.g. 3 hunters, 2 of them
shoot and hit P in the eye, and they cant tell whose
bullet hit Ps eye.
(A) The burden of proof shifts to Ds to prove
that they did not cause the harm, and if they
cant do that, P wins. And if both of them
cant prove they didnt do it, then theyre
jointly liable.
2. Proximate Causation (think fairness)
(1) Foreseeability Test:
(i) Ds should be on the hook only for the foreseeable
consequences of their actions
Two Types of Proximate Cause Qs Tested on Bar Exam:
(ii) Direct Cause Qs [the easy Qs]
(1) D suffers breach and P suffers harm immediately after that
(i.e. nothing happens in between) so the harm caused is
foreseeable, and weve got proximate cause.
(2) The only time we wont have proximate cause in these
cases is if the harm caused is freakish or bizarre
(iii) Indirect Cause Qs [more common on bar exam]:
(1) D breaches, something happens in the middle of the story,
and then after that, the P suffers the full measure of harm.
(A) The something that happens in the middle of
the story may or may not constitute a
superseding intervening force that breaks
the causal connection btwn Ds conduct and
Ps injury, relieving D from liability.
(2) The Well-Settled Quartet (i.e. cases where courts hold
that there IS proximate cause):
(A) Intervening Medical Malpractice: D runs a red
light, runs over P, and breaks Ps legs. At hospital,
doctor puts cast too tightly and has to amputate Ps
legs. Result: D, who ran the red light, is liable
for the amputated legs.
[Note: Dont forget that the doctor here is also
liable for his medical practice, separate and
apart from Ds negligence in running over Ps
(B) Intervening Negligent Rescue: D runs a red light,
runs over P. Then, Good Samaritan pulls P to side
of road and dislocates Ps shoulder. Result: D is
liable for the dislocated shoulder.
(C) Intervening Reaction or Protection Force: D
runs a red light and enters an intersection crowded
with lots of pedestrians and hits 1 P; to protect
themselves, they stampede, and one of them steps
on the Ps face and disfigures him. Result: D is
also liable for Ps disfigured face.
(D) Subsequent Disease or Accident: D runs a red
light, runs over P, P goes to hospital, P falls from
crutches and breaks arm. Result: D is also liable
for Ps broken arm.
o Criminal Acts and Intentional Torts of Third
Persons: ARE foreseeable intervening forces if Ds
negligence created a foreseeable risk that they would
occur (e.g. D failed to lock the door to the house D was
cleaning, which created a risk of burglary a
subsequent burglary will not cut off Ds negligence
(3) If you see an indirect cause fact pattern that doesnt involve
1 of the 4 settled scenarios where courts find proximate
cause, ask yourself: What is it about Ds conduct that was
a breach, and why am I worried about it? Then, look at the
end i.e. what happened to P.
(A) If theyre the same, then proximate cause.
(B) If not the same, then no proximate cause.
D. Element 4: DAMAGES
1. P must show that Ds negligent conduct caused damage to Ps person or
property. Damages are not presumed there must be actual harm or
(1) For property damage, measure of damages:
(i) Reasonable cost of repair;
(ii) But if the property has been almost or completely destroyed
FMV at time of injury
2. Nominal damages are not allowed for negligence.
3. Punitive damages generally are not recoverable in negligence cases
unless Ds conduct was reckless, malicious, or willful and wanton.
4. Egg-Shell Skull Principle: [Applies to ALL torts!!! Not just negligence!]
(1) Once a P establishes the other elements of negligence (including
causation), then P recovers for all damages suffered, even if they
are surprisingly large in scope. i.e. you take your P as you find
5. Avoidable Consequences Rule:
(1) In personal injury cases, Plaintiff has a duty to take reasonable
steps to mitigate damages (i.e. has a duty to seek appropriate
treatment to effect healing and prevent aggravation of the injury).
Failure to do so will preclude recovery for any particular item of
injury that occurs or is aggravated due to the failure to mitigate.
(i) Caveat: If P is a child and and it was his parents
negligence that kept him from seeking medical help, then in
an action against a third party (D), the childs parents
negligence is not imputed to the plaintiff child.
6. Recovering Damages for Emotional Distress:
(1) Recovery for emotional distress is restricted when there is no other
injury caused by the breach. But recovery for emotional distress is
allowed when the tort also causes physical injury of some sort.
E. Affirmative Defenses in Negligence:
1. Contributory Negligence and Implied Assumption of the Risk
(1) Both doctrines have been abolished in majority of states
(i) The MBE reserves the right on these, but they havent
tested much, if at all, on them recently
(2) Traditional Contributory Negligence Rule (largely abolished):
Ps negligence, no matter how slight, is total bar to recovery.
(i) Exceptions: A negligent P can still recover against D if:
(1) Last Clear Chance Doctrine: If D had the last clear
chance to avoid Ps harm and failed to do so.
(2) If Ds conduct was reckless and wanton.
(3) Assumption of Risk: to have assumed the risk, either expressly or
impliedly, P must have known of the risk and voluntarily assumed
2. Comparative Negligence (*will be on the exam*)
(1) D may introduce evidence that P failed to exercise reasonable care
for his own safety; Ps are also obligated to observe self-protecting
statutes (e.g. the statute that prohibits jay-walking so that they
dont get hit by a car)
(2) If P has failed to exercise reasonable care for his own safety or has
violated a self-protecting statute, D can introduce evidence of that,
and the jury will be instructed to assign a percentage of
responsibility to the two parties in the case, and the Ps recovery
will be reduced based on Ps percentage of fault.
(3) Pure Comparative Negligence [majority]
(i) Just go by the numbers (e.g. a 90% faulty P will still get
10% of the proven damages)
(4) Modified Comparative Negligence [minority]
(i) P fault over 50% becomes a bar, and P recovers nothing.
A. Substantial and unreasonable interference with Ps use and enjoyment of his
1. Unreasonable interference: To be an unreasonable interference, the
severity of the inflicted injury to P must outweigh the utility of Ds
conduct / interference.
2. Substantial interference: The substantial interference that results will
not be characterized as substantial if it is merely the result of Ps
specialized use of his own property.
B. A nuisance can be established no matter the Ds state of mind (i.e. D can be acting
intentionally, negligently, or even without any fault in cases where D is engaged
in an abnormally dangerous activity, like when wild animals or abnormally
dangerous animals are involved).
C. The only test is if the degree of interference is so great and unreasonable that the
P should not have to bare it.
D. Many nuisance cases involve incompatible land uses.
E. While not conclusive, if Ds conduct was consistent with what a zoning ordinance
permits, that is relevant evidence that it is not a nuisance.
F. Potential Remedies: money damages; injunctive relief
A. Misrepresentation
1. Intentional Misrepresentation (fraud, deceit):
(1) D misrepresents a past or present material fact
(2) D knows or believes the misrepresentation is false
(3) D intends to induce P to act or refrain from acting in reliance on
the misrepresentation
(4) P actually and justifiably relies on Ds misrepresentation
(5) Damages P must suffer monetary loss
2. Negligent Misrepresentation:
(1) D misrepresents a past or present material fact in a business or
professional capacity
(2) Breach of duty of care owed to a particular P (i.e. D knew P could
rely on the misrepresentation);
(3) Actual and justifiable reliance by P
(4) Damages P must suffer monetary loss
B. Intentional Interference with Business Relations:
Arises when a third party interferes with an existing contract
1. Elements
(1) P has a valid contractual relationship or business expectancy;
(2) D has knowledge of the relationship or expectancy;
(3) D intentionally interferes with that relationship;
(4) Ds interference causes a breach or termination in Ps contract or
(5) Damages
2. Privilege Defenses
(1) Ds conduct may be privileged when it is a proper attempt to
obtain business or protect his interests
(i) E.g. lawfully competing for Ps customers
VIII. Three Miscellaneous Topics ((i) Vicarious Liability; (ii) Co-Defendant Liability; (iii)
Loss of Consortium)
A. Vicarious Liability
o *** Impt. Test Note ***: Vicarious liability is always a doctrine of last
resort. So you should always ask yourself, first, Can this party be held liable
for his own conduct? Only if you cant hold him liable for his own
misconduct should you consider the possibility of vicarious liability.
Vicarious liability flows from 1 of 4 relationships:
1. Employer-Employee Vicarious Liability (Respondeat Superior)
(1) General Rule: When the employee is the tortfeasor, the employer
will be vicariously liable for torts committed by the employee if
within the scope of their employment.
(i) If detour minor deviation from the scope of
employment > probably WILL be liable
(ii) If frolic an unauthorized and substantial deviation
will NOT be liable
(2) General Rule re: Intentional Torts: Intentional torts are normally
outside the scope of an employees employment, so the employer
is not vicariously liable for the intentional tort UNLESS:
(i) 4 Exceptions Where Employer IS Liable for Employees
Intentional Tort:
(1) The job includes an authorization to use force (e.g.
a bouncer; security guard).
(2) The job involves creating friction / conflict (e.g. bail
(3) The intentional tort was done to advance the
employers interests (e.g. physically breaking up a
fight in a store)
(3) Rule re: Independent Contractors: Hiring parties are generally
not vicariously liable for torts committed by their independent
(i) Exception: A business owner will be vicariously liable
when the independent contractor is an invitee (i.e. is on the
businesss premises) and then hurts a customer.
2. Partner Partner (in Partnership):
(1) General Rule: Each partner is vicariously liable for any other
partners torts committed within the scope of the partnerships
business / affairs.
3. Automobile Owner Automobile Driver:
(1) General Rule: When the driver commits the tort, the automobile
owner will generally not be vicariously liable for the drivers tort.
(i) Exception: The owner will be vicariously liable for the
drivers tort if the driver was doing an errand for the
4. Parent Child:
(1) Rule: Parents will not be vicariously liable for the torts of their
(i) But Remember: Parents (or anyone else having care or
custody of a child) can be held liable for injuries caused by
the child where the parent herself was negligent. (e.g.
parent may be liable for failing to exercise reasonable care
to protect against their childs known dangerous or
destructive tendencies; the parent could then be liable for
its own negligence not vicariously liable for childs tort).
B. Joint Defendants / Co-Defendant Liability
o Always assume that co-Ds are jointly and severally liable to P, meaning that P
can recover the entire amount of damages from any 1 of the Ds.
1. Comparative Contribution:
(1) The out-of-pocket D (i.e. the D that ends up paying all the
damages) will be able to recover from the other Ds based on the
percentage of fault that the jury assigns all the Ds. (e.g. P
establishes $100K in damages, with D1 (10% to blame), D2 (30%
to blame), and D3 (60% to blame); P collects all $100K from D1.
D1 can then get $30K from D2 and $60K from D3).
(i) Insurance Note: As a general rule, damages are not
reduced by reason of benefits received by P from other
sources, such as health insurance. So if P got $20K from
her insurance company for medical expenses, that will not
reduce the amount of damages P can recover from D.
(2) 2 Exceptions [where out-of-pocket D gets all of his money back
aka Indemnification]
(i) Vicarious Liability: If D has been held vicariously liable,
D can get indemnification from the active tortfeasor.
(ii) Strict Products Liability: In a strict products liability
case, a non-manufacturer (like a retail store) can get
indemnification from the manufacturer. (e.g. P sues both
Home Depot and Black & Decker, recovers 100% from
Home Depot, and so Home Depot can get indemnification
(for entire amount) from Black & Decker);
(1) Impt Note: It doesnt go the other way, i.e. the
manufacturer cant get indemnification from the
C. Loss of Consortium
1. This remedy is granted to a married person whose spouse has been injured
in a tort. Its a derivative cause of action.
2. Impt Note: Any defense that can be asserted against the actual victim
spouse (e.g. consent, comparative negligence, etc.) can be asserted as
against the unharmed spouse bringing the derivative Loss of Consortium
cause of action.
3. In the consortium remedy, you can recover for:
(1) Loss of household services no one to cook meals,
(2) Loss of society emotional distress for loss of companionship
(3) Loss of sexual intimacy
D. Miscellaneous Rules
1. Imputing Anothers Negligence Onto Another:
(1) A parents negligence is not imputed to its child.
(2) One spouses negligence is ordinarily not imputed to the other.
2. Non-Liability vs. Liability for Servers of Alcoholic Drinks:
(1) At common law, a bartender / server of alcohol will not be liable
for the injuries sustained by the intoxicated person or injuries that
the intoxicated person caused to a third person.
(i) Caveat: Some states have enacted dramshop acts that
create a cause of action in favor of any third person injured
by the intoxicated vendee. Without a dramshop act, the
bartender will not be vicariously liable.
3. Directed Verdicts in Torts:
(1) To avoid a Ds motion for a directed verdict, a tort P must show:
(i) D had DUTY
And remember, Res Ipsa Loquitur allows P to avoid a directed
verdict b/c Res Ipsa allows for an inference of negligence (by
establishing DUTY and BREACH).
Ds motion for a directed verdict will be denied most of the
time, but sometimes will be granted (~20%)
(2) Ps motion for a directed verdict:
(i) Will almost always be denied b/c there is almost always a
triable issue of fact for the jury to determine.
(3) Most common answer is to deny both motions for a directed
4. Formula to Determine:
(1) E.g. Jury Determined that P suffered $100,000 in damages. P was
60% at fault, car driver (insolvent) was 30% at fault, truck driver
was 10% at fault. In a pure comparative negligence jurisdiction
retaining traditional joint liability rules, how much can P collected
from truck driver?
(i) First, $100,000 60,000 (from Ps fault) = $40,000 is
what the car driver and truck driver are jointly and
severally liable for; so P can recover $40,000 from one or
the other (and then that D can try and seek contribution
from the other)