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Torts Attack Outline Andrew Gelbman

Prof. E. Tenenbaum (Fall 2016)

I. Intentional Torts: ABCFIT. Elements: 1) volition; 2) intent, 3) causation, 4) harm, 5) no privilege/defense


Assault: Intentional act, which causes to experience reasonable apprehension, of an immediate H/O contact.-contact not req.
Battery: Intentional harmful or offensive contact. Sufficient to contact something close to - need not be aware of contact.
Conversion: destruction/serious & substantial interference w/ s chattel.-Mistake no defense.-Damages: FMV or Replevin
False Imprisonment: Intentional act, that causes to be confined or restrained, to bounded area, against s will, w/ knowledge of
confinement, or injury.-Physically confining, failure to release; or invalid assertion of legal authority.-Brief confinement will suffice.
IIED: Extreme/outrageous conduct that causes severe emotional distress.-Intent/Recklessness (high degree of probability)-Language not
outrageous except for innkeepers & common carriers.-Third Party: is immediate family member, & aware of presence; or any other
where distress results in bodily harm.
Trespass (Land): Volitional Act-Physical Invasion of s land.-intent irrelevant -Actual or Immediate Possession.-Invasion when
induces third party or object to enter land.-Includes areas above & below land.-Nominal Damages if no injury; Punitive Damages if willful
or malicious.-Ejectment: action to recover possession.-Mense Damages: for loss of use.
Trespass (Chattels): Volitional Act by that interferes w/ s chattel causing harm.-Mistake no defense.-Dispossession: direct interference
w/possession-Intermeddling: Does not directly affect possession.-Actual possession or right to immediate possession required.-ACTUAL
DAMAGES REQUIRED (i.e. loss of use, cost of remedy).
Defenses DARNCOPS: Discipline parental discipline of minors, Authority Lawful Arrest, Shopkeepers Privilege, Public Interest, or
Essential Function, Recapture/Reentry, Necessity to prevent substantially greater harm to public, himself or property. Public; no liability,
Private; liability for damage, Consent Express or Implied, Emergency Action or Reasonable Person (Defenses to Consent: Mistake &
Aware, s Fraud, Duress, Incapacity, Violation of Criminal Statute).-, Others (defense of) Force necessary to avoid harm, reasonable
belief, Property (defense of) Reasonable to Prevent Harm, Never Deadly Self-defense Force necessary to avoid harm, reasonable belief
II. Negligence: Elements: 1) Duty, 2) Standard of Care, 3) Breach, 4) Cause in Fact & Proximate Cause, 5) Harm, 6) Damages
Duty: Obligation to conform to standard of conduct to protect others from unreasonable risk.-Duty owed to foreseeable s..- Nonfeasence:
Failure to do something. Usually no affirmative duty to aid in rescue except if caused risk to . (e.g. hit and run. must aid , If starts
fire, must call for aid); in special relationship with , some obligation; if offers aid, and fails or puts in worse position, has
obligation to call for other aid or attempt further rescue attempt, If assumes care by action or promise, then has duty to provide. First
Responders Rule: public safety officers gen. have duty to act but if injured by perils theyre employed to confront, cannot recover damages
from those who created those perils. Control Third Parties: Special Relationship (Common Carriers, Innkeepers, Open to public (e.g.
stores), Landlord/Tenant, Employer/Employee, Student/School, In custody (prisoner) - profits from presence of and must rely on
for aid & in position to provide aid), Negligent Entrustment.-Government: Proprietary-Duty, Discretionary: No Duty, Ministerial: Duty.
Negligence Per Se: violated law/regulation designed to prevent behavior & protect class. Duty if B>PL (Learned Hand Formula)
Good Samaritan Statutes: -ltd. to med. personnel (liable only for extreme negligence where better off if no aid offered applies even if
rescuer paid). Some states impose duty to rescue. VT: Req. reasonable assistance to another exposed to grave, physical harm, when aid can
be rendered w/o peril/danger to self. Violations liable up to max of $100, MN: petty misdemeanor to fail to provide aid, RI: rescuee must
require aid that rescuer can provide w/o peril to self or others.
NIED: Zone of Danger, Accomp. Physical injury. Bystander: Located near scene, shock resulting from observance, close
relationship w/ victim. (Dillian Rule)
Possessors of Land: Invitee: Inspect & make safe, Licensee: Warn, Trespassers: None if unknown, if known duty to warn of
hidden dangers. Children: Attractive Nuisance.
Standard of Care: Reasonably Prudent person under same or similar circumstances, not altered by voluntary intoxication. Children:
Reasonable Child of same Age, Education, Intelligence, & experience. Adult activities conform to adult standard of care.
Breach of Duty: Conduct fails to conform to standard of care.
Direct Liability: duty breached, liable for ALL dam. (Obsolete, but on bar exam). liable even if accident occurs in unanticipated way.
Actual Cause: Actual cause must be proved by preponderance of evidence. (But-For Causation) Do not use Substantial Factor is there is
But-For Causation (can use to prove proximate (legal) cause)
Proximate (Legal) Cause: defense if harm is so clearly outside risks created by , unjust and impractical to impose liability. Possibility of
harm must be clear to reasonable person, and only liable for risks that reasonable person would have anticipated! Defendant is generally
liable for all general kinds of harms defendant. Foreseeability risked by negligent conduct & to class of people put at risk. only liable for
general kind of harm should have seen & taken steps to avoid. (Hand Formula) Foreseeable within zone of danger. Superseding Cause:
breaks chain of causation (i.e. acts of G-d, 3p criminal acts, 3p intentional torts, & extraordinary negligent conduct. Intervening Cause:
Subsequent Malpractice, Illness, & Negligent Rescue Effort. Multiple independent sufficient causes: where either sufficient to cause
indivisible injury, all tortfeasors liable. Multiple tortfeasors: conduct of each created risk to and 1+ caused harm but cant be expected
to prove which.Both liable - burden shifts s to prove who caused harm
Defenses: (1) contributory negligence, (2) comparative fault, (3) assumption of risk (Express or Implied), or (4) illegal conduct.
Contributory negligence: Very rare, - affirmative defense, plead it or lose it has no liability if s own negligence was an actual &
proximate cause of injury unless (1) was recklessness (2) underlying tort intentional; (3) last clear chance applies, or (4) rescue doctrine
applies. Last clear chance doctrine (obsolescent comparative fault replaces): has last clear chance to avoid causing harm by
reasonable care. Helpless peril: negligence put in position of peril & had no reasonable means of escape, they should have known; &
knew or should have known of peril. Not-so-helpless peril: negligence put in position of peril; has reasonable means of escape
should have known about; & (2) actually knew of peril. Rescue doctrine: negligently injures self-trying to rescue from predicament
resulting from s negligence, avoids contributory negligence unless recklessly (or wantonly) injured self.

Torts Attack Outline Andrew Gelbman

Prof. E. Tenenbaum (Fall 2016)

Comparative fault: negligence may reduce, not necessarily bar, recovery. Pure comparative fault: recovery reduced commensurate w/
fault, regardless of % fault allocated to . Modified comparative fault: Same as pure comparative fault, except barred from recovery if
% of fault allocated to exceeds or (in some jurisdictions) equals combined fault of all s.
Assumption of risk: negligent or reckless not liable if aware of an unreasonable risk posed by negligent/reckless conduct but
voluntarily proceeds despite risk, whether negligently or reasonably. Express assumption of risk: assumes risk by contract agreement.
Note: Some risks not assumable on public policy grounds (e.g., medical malpractice, esp. in emergencies). Implied assumption of risk:
knowingly & voluntarily undertakes inherently risky acts (primary assumption of risk) (e.g., playing sports, dangerous job) or aware of
nature & risk of dangerous situation created by negligence, but proceeds in face of risk.
Illegal conduct: gen. may not recover if harm direct result of participation in criminal activity.
Damages: must prove actual damages, then may recover damages from liable for PEER (1) Physical (2) Economic (3) Emotional (4)
Reputational injuries
Loss-of-Chance: used in Med. Malpractice, 3 theories (1) but-for negligence, not have died (2) liable for 100% of loss if breach a
substantial factor in harm. (3) breach a substantial factor in heightened risk to , even if cannot prove by ultimate injury caused by . (e.g.
negligent, s chances lowered from 30% to 20%, & dies; even if s estate cannot prove that doctors negligence caused death of ,
loss of chance of survival compensable) Apportionment of responsibility among multiple parties: Pro Rata Share: (common law. If there
are 2 both liable for 50%, 3 then 33%, etc.). 3P Complaint: If does not sue joint tortfeasors, then can implead 3P. Multiple parties
may be at fault for harm, including , liability apportioned among those at fault. Acting independently: If responsible parties are not
acting in concert, then (1) each responsible for portion of divisible injury they caused (causal apportionment); or (2) if injury
indivisible, then responsibility will be apportioned commensurate w/ % allocation of fault to each (fault-based apportionment). Acting
in concert: If multiple act in concert to cause an injury, then each jointly & severally liable for 100% of harm. s ultimate recovery
upon fault-based apportionment: Where responsibility allocated to multiple based on fault (i.e. indivisible injury), rules governing how
much may recover from each will depend on if jurisdiction imposes (1) several liability or (2) joint & several liability. One satisfaction
rule: may recover only up to 100% of aggregate damages awarded. Several liability: may only recover, from given , that particular
s proportional share of damages. Joint & several liability: may recover total award from one, some, or all of s. Joint & several
liability w/ contribution: After recovers total award, who paid more than his apportioned share may sue other s for reimbursement of
excess.
III. Strict LiabilityLiable regardless of whether exercised due care.
Possession of animals: animal must have known dangerous propensitiesone bite rule.
Abnormally Dangerous Activities: 1) activity creates serious risk, 2) risk cannot be eliminated by due care 3) activity not usually
conducted in area. Defenses: usually none, Contributory Negligence usually no defense, unless consciously disregards apparent danger.
Even then, only reduces recovery Assumption of Risk: If knows of danger & voluntarily exposes himself to it. Very rare.
IV. Vicarious liability: (1) vicariously liable for conduct of 3P (primary tortfeasor) due to special relationship. may recover from
vicariously liable party to same extent, & on same terms, as primary tortfeasor. Neither may seek contribution from other . vicariously
liable party may sue primary tortfeasor for anything that vicariously liable party has to pay. Respondeat superior: employer liable for
employees tort if: master/servant relationship exists at time of harm, & tort committed w/i scope of employment. Master/servant
relationship: employer controls end result, & manner & means of work. Borrowed servant: employee loaned to employer regarded as
acting for borrower whos vicariously liable for employees torts. Scope of employment: employee working for employer, substantially
within authorized time & space limitations, & motivated (at least in part) by desire to serve employer. Going & coming rule: employer
generally not liable for torts committed by employee during commute unless employee on mission/errand for employer; commute involves
special hazards not typically posed to commuting public; or employee travelling between jobsites. Defenses: IFI Intentional torts:
unless motive of tort from conditions attributable job, & tort reasonably foreseeable due to nature of job/business (e.g. bouncer, guard,
police officer). Frolic: employee (1) significantly departs from employers authorized time/space constraints & (2) acts w/o any substantial
motivation to serve employer. Detour: minor deviation from employers designated time, place, & business, where conduct otherwise
substantially serves employer within scope of employment. Independent contractors: employer not vicariously liable for torts of
independent contractor, unless work SIN: (1) shoddy, dangerous construction; (2) inherently dangerous; or (3) non-delegable; Shoddy
construction: (1) construction, repair, or maintenance of structure on employers premises; (2) IC makes structure unsafe by negligent
work; (3) employer has retaken possession of premises from IC. shoddy construction rule does not apply if IC, through negligent work
unforeseeable to employer, creates temporary risk of harm (other than structural defect) that exists while work in progress & not inherent
to work itself.; Inherently dangerous work: employer knows or should know work peculiarly risk of to others unless special precautions
are taken (e.g., abnormally dangerous activity/cargo, armed security, excavation/timber harvesting in populated areas, or installing electric
wiring). Non-delegable work: responsibility for torts arising from work may not be delegated to IC by law, on public policy grounds (e.g.,
duty to provide safe premises, E.R. M.D. duty to provide competent emergency care, or common carriers duty to provide safe
transportation).
Negligent hiring, supervision, & entrustment: An employer (or other ) may be personally (not vicariously) liable for negligent hiring,
supervision, or entrustment of others. Negligent hiring: hiring an employee that employer knows (or should know) to be incompetent,
negligent, careless, or violent. Negligent supervision: failing to properly supervise third party subject to s care, custody, or control.
Negligent entrustment: entrusting third party to participate in activities or operate dangerous instrumentalities where knows (or should
know) that 3P (will or likely) to conduct himself, or utilize instrumentality, to create foreseeable & unreasonable risk of harm to others.

Torts Attack Outline Andrew Gelbman

Prof. E. Tenenbaum (Fall 2016)

Concepts important to know but not covered on final:


V. Strict Products Liability: Proper , Proper (manufacturer, distributor & retailer), Product in defective or unreasonably dangerous
condition, Proximate Cause, Damages, Defenses: Misuse, Contributory Negligence
Product Liability in Negligence: Used Goods, Repairs of Used Goods, leasing real property, services, & franchisors.
VI. Nuisance: Substantial interference w/ use & enjoyment of land or right. Basis may be intentional, negligence or absolute. Public v.
Private, Damages or Injunction may be awarded.
VII. Defamation: 1) Defamatory Message 2) Publication 3) Damages: Pecuniary Required for Slander, Punitive Requires Evil
Slander Per Se: crime or moral turpitude, loathsome disease, business reputation, chastity Public Official: Malice
Defenses: Truth, Absolute Privilege