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TORTS

Structure for an answer

General Considerations
Plaintiff is suing Defendant for X
To establish a prima facie case for X, Plaintiff must prove
Here, Plaintiff will show[analyze each element]
Conclusion
Defenses

Problem Solving Approach

I. General Considerations
A. Vicarious liability: liability that is derivatively imposed
Employee/servant (respondeat superior): Employer/master liable if tortious act within scope of
employment relationship
o Frolic and detour;
o Intentional torts is not within the scope, except: 1) force is authorized; 2) friction is
generated by the employment; 3) the employee is furthering the business of the employer
Independent contractor: not vicariously liable unless activity is 1) inherently dangerous or 2) duty is
nondelegable on public policy grounds
Automobile owner for driver: automobile owner is not vicariously liable for the tortious conduct of
another person driving his automobile. Exception: family car doctrine and permissive use doctrine
o GA: owner-occupant doctrine and family purpose doctrine
Child: Parent not vicariously liable unless child acting as agent for parents
o GA: liability on a parent or guardian of up to $10,000 for a childs willful or malicious
injury
Tavern Keepers and Social Hosts: not vicariously liable for intoxicated person unless there is a
Dram Shop statute
o GA: Dram Shop Act- a person who knowingly furnishes alcohol to an underage or
intoxicated person, knowing that such person will be driving a motor vehicle, will be
liable. A knew and should have known state of mind is required.
Alternative theories: If related party is not vicariously liable, she still can be liable for negligence
(negligent hiring, negligent entrustment, negligent supervision of child)
B. Joint liability
Joint and several liability: Two or more negligent acts combine to proximately cause an indivisible
injury, each actor is liable to plaintiff for the entire damage incurred
o If the injury is divisible, each defendant is only liable for their attributable portion
Contribution: allows a defendant who pays more than his share of damages under J&S liability to
have a claim against other parties for the excess (no intentional torts contribution)
o Comparative contribution v. Equal shares
o GA: contribution is equally apportioned
Indemnity: it involves shifting the entire loss between or among tortfeasors. 1) by contract; 2) in
vicarious liability situation; 3) under strict products liability
o GA: applies the principle of indemnity to allow a passively negligent defendant to
recover indemnification from the actively negligent defendant
C. Survival Actions
Allows ones cause of action to survive the death of the parties, except for torts invading intangible
personal interest
D. Wrongful death
Wrongful death acts grant recovery for pecuniary injury resulting to the spouse and next of kin
A decedents creditors have no claim against the amount awarded
The recovery is allowed only to the extent that the deceased could have recovered in an action had
he lived & heirs and the personal representative of the estate can bring
Comparative negligence applies: both decedent and beneficiarys negligence
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o GA: full value of the decedents life, including pecuniary losses resulting from the
death and damages.
E. Tortious Interference with Family Relationships
Husband-Wife: loss of consortium and service
Parent-child: loss of a childs service
Actions are derivative
F. Immunities
Public officials carrying out official duties are immune from tort liability for discretionary acts done
without malice or improper purpose.
Liabilities attaches for ministerial acts

II. Intentional Torts
A. Assault
1. An act by defendant creating a reasonable apprehension in plaintiff (words alone are not sufficient)
2. Of immediate harmful or offensive contact to plaintiffs person (fear or intimidation not necessary)
3. Intent
4. Causation
(There is a requirement of immediacy)
B. Battery
1. Harmful or offensive contact
2. To plaintiffs person
3. Intent
4. Causation
(Reasonable person standard; direct or indirect contact; A persons extension; consent defense; nominal
damage is OK)
GA: No intention requirement but will consider in assessing damages
C. False Imprisonment
1. An act or omission on the part of defendant that confines or restrains plaintiff
2. To a bounded area
3. Intent
4. Causation
(Awareness of confinement; no reasonable means of escape known to plaintiff; time is irrelevant)
GA: By statute, a shopkeeper in Georgia may detain a person for a reasonable amount of
time upon a reasonable suspicion of shoplifting
D. IIED
1. An act by defendant amounting to extreme and outrageous conduct
2. Intent or recklessness
3. Causation
4. Damages-severe emotional distress
(Susceptible plaintiff; common carriers or innkeepers defendants higher level of standard if relationship
exists)
Bystander case: 1) presence; 2) awareness of defendant; 3) close relative to injured person
GA: For bystander to establish IIED, there must be physical impact involved
E. Trespass to chattels/Conversion
1. An interference with plaintiffs right of possession (intermeddling or dispossession)/ Dominion or
control over a chattel and seriously interfering with the rights (Physical invasion of personal
property)
2. Causation
3. Damages (Trespass to chattels only)
o GA: Remedies are fair market value of the converted property at the time of
conversion and replevin (with faire rental value)
F. Trespass to Land
1. Physical invasion of plaintiffs real property
2. Intent (not motive)
3. Causation
o Cannot use force to prevent someone who is privileged
G. Defenses POPCANS
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1. Consent
o Express consent v. implied consent; capacity required; exceeding consent given
2. Self defenses (self, others, property)
o A person is justified in using reasonable force to prevent what she reasonably believes to
be an imminent threat of force against her
o Is the privilege available? (No tort already committed); 2) is a mistake permissible? 3) was a
proper amount of force used?
o Deadly force: is reasonable only when the defender reasonably believes that he faces a
threat of imminent death or serious bodily harm; must retreat unless you are in your own
home; Deadly force may never be used to protect property alone
GA: Requires not duty to retreat and follows reasonable mistake doctrine
for defense of others; deadly force in protecting habitation or reasonable
belief in felony
3. Necessity
o A defense only to intentional property torts public and private & will be responsible for
damages
4. Privilege of arrest
o Police and private citizen (no mistake about whether the felony occurred)

III. Harm to Economic and Dignitary Interests
A. Defamation
a. CL: (1) Defamatory statement (inducement and living person requirement)
(2) Of and concerning P (extrinsic evidence allowed)
(3) Publication (made by either intentionally or negligently)
(4) Damages:
Slander: prove special damage
Libel and Slander per se: damages is presumed
GA: Slander and libel need to prove special damage unless per se rules: 1) statement
imputes plaintiff in his trade/profession/office; 2) statement accusing plaintiff of serious
crime; 3) loathsome disease; 4) disparaging words productive of special damage
b. Defenses: consent, truth, privilege
c. Constitutional issues: (1) falsity, (2) fault, if a matter of public concern
o Fault: If a public official or figure, malice (knowledge of the falsity and recklessness to the
falsity) is required; if a private person, no malice.
B. Invasion of Privacy: Misappropriation; Intrusion; False light; Publication of private facts
C. Fraud: 1) Affirmative Misrepresentation; 2) Knowledge of falsity-scienter; 3) inducement-inducing the
plaintiff to change position; 4) justifiable reliance; 5) damages
Negligent misrepresentation: 1) commercial transaction; 2) confined to the particular plaintiff whose
reliance is contemplated
D. Malicious Prosecution; (Criminal)
E. Abuse of Process;(Civil)
GA: Abusive Litigation Statute requires that 1) malice and without substantial justification; 2)
Notice requirement 30 days; 3) termination of underlying litigation in favor of plaintiff
F. Interference w/ Business Relations
GA: defamacasts cause of action for defamatory radio and television broadcasts

IV. Negligence
A. Elements:
(1) Duty 1) foreseeable plaintiff; 2) standard of care;
o Rescuers are foreseeable- (Exception: firefighters rule)
o Particular standards of conduct: (same physical characteristics & mental deficiencies are
not considered)
Professionals: the customary practice of professionals in good standing sets the
standard of care; uninformed consent will result in intentional battery
GA: it holds professionals to a national standard of care rather than a
local one
Georgia has a special pleading requirement for professional
negligence actions, which requires that the plaintiff attach the
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complaint an affidavit of an expert, specifying an act of professional
negligence
Children (same age, education) & Common carrier and innkeeper (higher degree of
care)
GA: Children under 13 will not be liable for negligence
Owners and occupiers of Land
Off premise: unreasonable dangerous artificial conditions
On premise:
1) Trespassers: No duty to undiscovered trespasser, but to discovered
trespassers, artificial conditions known to the landowner involving risk
of death or serious bodily harm. (Attractive Nuisance Doctrine)
2) Licensees: No duty to explore or inspect, but dangerous natural or
artificial conditions known to the owner that create an unreasonable
risk of harm
3) Invitees: Duty to make reasonable inspections to discover nonobvious
dangerous condition
o GA: licensees need present business relationship with
the occupant/owner of the property to become invitees
Landlord and tenant: generally no duty after the possession is transferred unless
the landlord undertakes to repair such conditions or covenants to repair them
GA: a landlord is responsible for damages arising from defective
construction or from failure to keep the premises in repair (higher
burden)
o Affirmative duty to act: (Generally no duty)
Assumption of duty by acting- reasonable care (exception: Good Samaritan statute)
Peril due to Defendants conduct
One has a duty to assist someone he has negligently or innocently placed
in peril.
Special relationship between parties
Duty to control third party persons: no duty unless special relationship.
GA: under Good Samaritan statute, not liable for ordinary
negligence unless gross negligence and recklessness
(2) Breach of duty custom & usage,
o Statutory standard of care violation: Existence of a duty owed to plaintiff and breach thereof
may be established as a matter of law by proof that defendant violated an applicable statute
(negligence per se)
o Res Ipsa Loquitur: The very occurrence of an even may tend to establish a breach of duty
The accident causing the injury is a type that would not normally occur unless
someone was negligent, and
The negligence is attributable to defendant- (the instrumentality causing the injury
was in the exclusive control of defendant)
(3) Causation actual cause or Causation in Fact (but for test, substantial factor test, alternative
causes approach) & proximate (foreseeable harm)
o Actual cause
But for test: Act or omission is the cause in fact of an injury when the injury would
not have occurred but for the act
Substantial factor test: Where several causes bring about injury, and any one alone
would have been sufficient to cause the injury, defendants conduct is the cause in
fact if it was a substantial factor in causing the injury.
Alternative causes approach: Where there are two acts, only one of which causes
injury, but it is not known which one. The burden of proof shifts to defendants to
show his negligence is not the actual cause.
o Proximate cause: Foreseeability test (foreseeable plaintiff & foreseeable harm)
Foreseeable Plaintiff: those individuals who are within the zone of danger created
by a defendants unreasonable conduct
GA: ambit of risk
Harm: Foreseeable intervening cause: not cutting of liability
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(1) Negligence of rescuers ("danger invites rescue"); (2) Subsequent
medical malpractice; (3) Subsequent disease contracted because of the
impairment of Plaintiff's health resulting from the original injury caused by
Defendant; and (4) Subsequent accidents causing injuries to Plaintiff if the
original injury caused by Defendant's actions was a substantial cause of the
accident leading to further injuries to Plaintiff
Eggshell plaintiff doctrine: full extent of injury recovery
Harm: Unforeseeable intervening cause: (Superseding cause breaks the chain of
causation between the initial wrongful act and the ultimate injury)
(1) Acts of God; (2) Criminal acts of third persons; (3) Intentional torts of
third persons; and (4) Extraordinary forms of negligent conduct (ie, gross
negligence)
Note: not cut off liability if defendant can anticipate the intervening
cause
(4) Damages: no presumed and nominal damage is not available
o Personal injury: economic damages (medical expense) & noneconomic damages (pain and
sufferings. Foreseeability of the extent of harm is generally irrelevant
o GA: punitive damages may be recovered by proving by clear and convincing
evidence that the defendants action showed willful misconduct, malice, fraud,
wantonness, oppression or so malicious and wanton as to raise a presumption of
reckless disregard for the consequences of his actions
B. Special negligence actions: attorney malpractice, negligent infliction of emotional distress
Negligence infliction of emotional distress:
o Zone of danger: 1) must be within the zone of danger; 2) the plaintiff must suffer physical
symptoms from the distress (GA: Impact Rule)
o Bystander: 1) the plaintiff is closely related to the injured; 2) the plaintiff was present at the
scene of the injury; 3) the plaintiff personally observed or perceived the event (GA:
Common Force Rule)
GA: 1) requires impact, such as physical injury or other personal injury; 2) no
bystander action except in cases where a parent and child are injured and the
parent witnessed the childs suffering and death
C. Defenses
Contributory negligence: plaintiffs claim completely barred & last clear chance rule apply
Implied assumption of risk: plaintiff knew of a risk of injury and voluntarily assumed it (exception:
public policy such as medical service)
o Plaintiffs claim completely barred & last clear chance rule does not apply
GA: the defendant can show that the plaintiff had: 1) actual knowledge of the
danger; 2) understanding and appreciation of the risk; 3) a voluntary
exposure to the risk
Pure comparative negligence: MBE default
o Plaintiffs damage award reduced by percentage of fault attributable to her& last clear
chance rule does not apply
Partial or modified comparative negligence
o Plaintiffs damage award reduced if her fault is below the threshold level; otherwise
plaintiffs claim is barred & last clear chance rule does not apply
GA: 1) contributory negligence-a plaintiff is considered contributorily negligent if his
negligence was the proximate cause of the injury or if he could have avoided the defendants
negligence by exercise ordinary care; 2) modified or partial comparative negligence-the
defendant and the plaintiffs negligence together constitute the proximate cause of the injury

V. Strict Liability: 1) absolute duty to make safe; 2) actual and proximate cause; 3) damages
A. Animals
B. Inherently dangerous activities
Defenses:
o Comparative fault defense (MBE presumption)
o Assumption of risk (completely bar but abolished in comparative fault states)
o Unforeseeable misuse of abuse of product
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GA: The only abnormally dangerous activity recognized by Georgia is
blasting

VI. Product Liability
A. Theories: (1) negligence; (2) strict liability; (3) implied warranties of merchantability; (4) express
warranties
B. Strict Products Liability: (1) any entity that is engaged in the business of selling the product and in the
chain of distribution of the product can be held liable but no causal sellers D; (2) defect (reasonable
consumer expectation) (3) when left Ds control; (4) users, consumers and bystanders can sue. No
privity is required
GA: the defendant must be the actual manufacture of the item and statute of limitation is
10 years
C. Negligence: (1) duty to supply safe products; (2) breach; (3) causation; (4) damages
D. Express Warranties: show that the product did not live up to its warranty
E. Implied Warranties of Merchantability (ordinary product) Fitness (particular purpose)
GA: Alternative A which extends implied warranty protection to a buyers family, household,
and guests (Horizontal privity)

VII. Nuisance

A. Private nuisance: a substantial, unreasonable interference with another private individuals use or
enjoyment of property that he actually possesses or to which he has a right of immediate possession.
o Substantiality is based on a person with normal sensibility
o The inflicted injury must outweigh the utility of defendants conduct
B. Public nuisance: an act that unreasonably interferes with the health, safety, or property rights of the
community.
o Recovery by a private party is available only if the party suffered unique damage
C. Remedies: 1) damages; 2) injunctive relief; 3) abatement by self-help