I.

Intentional Torts
a. Act
i. Voluntary – of your own volition: no unconscious, reflexive, or involuntary movements.
b. Intent
i. Purposeful
ii. Knowledge w/ substantial certainty of the consequences (recklessness?)
iii. Intent may transfer from target to target or tort to tort
1. the injury must be direct and immediate
c. Battery
"An act by D which brings about harmful or offensive contact to P's person."
i. Elements
1. Harmful or Offensive Contact
a. Harmful: injurious.
b. Offensive: reasonable sense of dignity or appropriate conduct.
2. With P’s Person
a. Reasonably includes items attached to body.
ii. Consent
1. Majority: Affirmative Defense
2. Minority: part of the prima facie battery
iii. Self-Defense Privilege (Defense of Others, Defense of Property)
1. Affirmative Defense
2. Level of force MUST be Proportionate
a. Deadly Force is always disproportionate when defending property.
i. Relaxed for home or vehicle invasion.
3. Elements
a. Threat must be imminent or in-progress.
b. Reasonable belief that threat is genuine.
i. Reasonable error is not a bar.
ii. Majority: Objective Standard
iii. Minority: Subjective Standard
4. Deadly Force: Retreat
a. Majority: No obligation.
b. Minority: Obligation, if safe.
c. No obligation in one’s dwelling.
5. Third Party
a. Majority: One who goes to the aid of another does so at his own peril.
b. Minority: Mistaken but reasonable belief of protection is justified.
iv. Battered Woman Syndrome / Intimate Partner Battery
1. New Jersey Cause of Action
a. Elements
i. Presence of marital or marital-like intimate relationship;
ii. Physical or psychological abuse perpetrated by dominant partner over extended
period;
iii. Recurring physical or psychological injury over the course of the relationship; and
iv. Past or present inability to unilaterally take any action to improve or alter the
situation.
d. Assault
"An act by D creating a reasonable apprehension in P of immediate harmful or offensive contact to P's person.
i. Elements – Act by D creating:
1. Reasonable apprehension in P of;
a. Apprehension means awareness
b. Apprehension is not fear or intimidated, you can be afraid or intimidated and not feel as if
you’re about to get hit.
c. Apparentability is all that is necessary – ie it doesn’t matter that the gun isn’t loaded if you
don’t know it isn’t loaded.

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 2. Immediate harmful or offensive contact.
a. Present ability to do the act is required.
i. “Words alone lack immediacy.” Words alone are insufficient. Must be words coupled
w/ conduct.
ii. Words may undo conduct (*shaking fist* “If you weren’t my best friend I’d punch you
in the mouth“)
e. False Imprisonment
"An intentional act or omission by D that confines or restrains P to a bounded area."
i. Elements
1. Act or Omission by D that confines or constrains P
a. Against P’s will
b. Restraint must be substantially total
i. Actual force
ii. Reasonable apprehension of force
c. Omission or failure to act may be restraint if D duty to facilitate P’s movement.
2. Bounded area
a. No reasonable means of escape
i. Not reasonable if means is dangerous, disgusting, humiliating, or secret.
3. Intent
a. D must intend to impose restraint
4. Causation
a. Awareness of the confinement at the time is required.
f. IIED (Intentional Infliction of Emotional Distress)
"An act by D amounting to extreme & outrageous conduct, with intent to or reckless disregard of, causing P to suffer severe emotional distress."
i. Elements
1. D’s conduct is extreme & outrageous
a. Conduct that exceeds all bounds of decency tolerated in a civilized society.
b. Fact intensive, can be subjective to victim
i. Power relationship
ii. Frequency/repetition over time
iii. Public (humiliation, so more likely) v Private
iv. P is of unusual vulnerability and D knows it
2. With intent or reckless disregard
3. Factually and proximately causing
a. Severe physical harm to a third person
i. P must be present, close relative, and D must have knowledge of that.
4. P’s substantial/severe emotional distress
a.
Specific manifestation (physical or otherwise, heart attack, clinical diagnosis of depression, etc)
not required, but it will bolster your case.
b. Transient or briefly upsetting is not enough.
ii. Context is key: Why is THIS action in THESE circumstances w/ THESE details extreme & outrageous?
iii. Tends to be a string of acts over a protracted period of time. Sufficiently protracted period, of increasing or
sustained high intensity, can overcome situation factors which tend to grant leeway.
II. Interference with Property
a. Trespass to Land
i. D must have invaded P’s land. Unauthorized.
1. Can throw rocks or push someone else.
2. Must be a physical object, loud music doesn’t count.
b. Trespass to Chattels
i. Some damage (scratched up briefcase) or Dispossession (had briefcase for a day).
ii. Conversion
1. Tremendous damage (destroyed briefcase) or Dispossession (had briefcase for 10 months).

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III. Affirmative Defenses
a. Consent
i. Objective Criteria
1. Inferred from conduct under reasonable person standard; or
2. What a reasonable person would understand herself to have consented to under the circumstances
a. Convention: What is normally expected of the activity
b. Prescription: What is legitimate given the character of the activity
ii. Express Consent: contract.
iii. Manifest Consent
1. Implied: rush hour subway jam
2. Presumed: first aid
3. Imposed: law
iv. Vitiated
1. Scope exceeded (consented to a fistfight, not a knife fight)
2. Consent Withdrawn (No.)
3. Public Policy: Incapacity, Coercion, Mistake, Fraud
a. Incapacity: insanity, intoxication, developmentally disabled
b. Mistake: still valid unless D caused mistake or has knowledge of it and takes advantage.
c. Children can only consent to age-appropriate invasions
v. Effective Consent
1. Actual Knowledge
2. Freedom of Choice (no duress, etc)
a. Necessity Defenses (property)
i. Public Necessity
1. D invading property in an emergency to protect the community as a whole.
2. Absolute defense.
ii. Private Necessity
1. Invading property in an emergency for a self-interested reason (protect himself).
2. Not an absolute defense. No nominal or punitive damages but liable for any actual harm done
3. As long as the emergency continues you have a right to remain safely on the P’s land.
IV. Negligence
"Negligence occurs when D's duty to a standard of care is breached which causes damage to the P."
Duty - Standard of Care - Breach - Causation - Damages
a. Duty
"As a matter of law, whether or not the person had an obligation to do anything at all."
i. General Duty
1. Reasonable Person: We have a general duty to take such precautions against unreasonable risks as
would a reasonable person acting under the same or similar circumstances.
a. No duty is imposed to guard against unforeseeable risks.
b. Superior knowledge or skill may ratchet up the standard.
c. Physical conditions taken into account. ("reasonably prudent blind man")
2. Duty of care is only owed to foreseeable P's.
a. Majority: Cardozo
i. Reasonably foreseen a risk of injury to P under the circumstances.
ii. Foreseeability: Scope of Risk & Zone of Danger. Is the injury within the risk of things
that made this conduct negligent?
b. Minority: Andrews
i. Duty of care is owed to anyone who suffers injuries as a proximate result of his breach.
ii. Proximate consequences that are close in time and space. Remoteness in time and
space increases the chance of intervening causes.
iii. Hindsight: Direct, continuous, and natural sequence connects the harm to the breach.
ii. No Duty to Act Affirmatively
1. Exception: Pre-existing formal relationship may impose a duty (Parent/Child, Employer/Employee,
Common Carrier).
2. Exception: You are the author of the peril.
3. Exception: If you choose to Act (rescue) you are then liable for botching it.
a. Good Samaritan laws, if enacted, serve to insulate from ordinary negligence but not gross
negligence.

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 iii. Negligent Infliction of Emotional Distress
1. P must be within Zone of Danger
a. Bystander exception:
i. P and V Closely Related
ii. P was present and personally observed/perceived event
2. P's emotional distress must manifest in physical symptoms
b. Few exceptions where D's negligence creates great likelihood of severe emotional distress
(erroneous report of relative's death)
iii. Landowners
1. Obligation for dangers which are a static/stationary part of the land/premises.
2. Majority: Traditional CL Groups
a. Undiscovered Trespassers
i. No duty of care.
b. Discovered or Anticipated Trespasser
i. Duty owed if condition is Artificial, Dangerous, Concealed, Landowner Knowledge.
c. Licensee
i. Enters w/ permission but does not confer an economic benefit to the land owner.
1. “Social Guest” is most common type in the case law.
2. Anybody coming to the door on their own business (girl scout cookie peddler,
utility meter reader, etc)
ii. Duty owed for concealed conditions known by landowner.
d. Invitees
i. Enters w/ permission and either (1) confers an economic benefit to landowner or (2)
the land is open to the public.
1. Business invitee v Public invitee
ii. Duty owed for concealed conditions which are known by landowner or could have
been discovered by reasonable inspection.
3. Minority: Reasonable Person Standard.
a. Act as a reasonable person under the circumstances.
i. Circumstance: status of the entrant still comes into play.
4. Special Rule: Trespassing Children – “Attractive Nuisance Doctrine”
a. Reasonable person standard of care because it’s a child, despite their trespass.
b. IE – fence in the pool!
5. How is the duty discharged?
a. Fix the dangerous condition.
b. Warn of the hazard.
iv. Vicarious Liability
1. Employer/Employee
a. Liable unless employee acting outside of scope of employment
b. Independent Contractor
i. Not liable for independent contractors.
ii. Designation may lie in how much control employer exerts over e'ee/sbct
b. Standard of Care
i. Reasonable
1. Reasonable Person Standard
a. Same physical characteristics as D.
b. Average mental ability, individual mental handicaps not considered.
c. Knowledge of average member of community unless D has superior.
2. Hand Formula (B<PL)
Best used when an enterprise is involved.
a. B - burden, the cost of the precaution.
b. PL - risk (probability of loss).
i. P - likelihood harm will happen.
ii. L - gravity of harm.
3. Emergency Situations
a. An emergency, presenting little time for reflection, is a factor - D must act as a reasonable
person under the same emergency.
i. Exception: D is author of the emergency.

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 ii. Customary & Professional
1. Customary
a. Only evidence of due care, not presumptive.
2. Professional
a. Reasonable care is that degree of care and skill ordinarily exercised by qualified members of a
given profession.
i. Reasonable professional standard requires expert testimony.
b. Locality (even split)
i. Strict: Compared to conduct of others in same locality.
ii. Modified: Compared to conduct of others in similar locality.
iii. New: Compared to others of the same class.
c. Informed Consent (Duty to Disclose)
If an undisclosed risk was serious enough that a reasonable person in the patient's position would have withheld
consent there is a breach.
i. Prima Facie Elements
1. Nondisclosure of relevant information
2. Actual damage
3. Resulting from undisclosed risks
4. Cause (subjective)
a. This P decided differently?
5. Cause (objective)
a. Reasonable person decided differently?
ii. Medical Standard
1. Use of expert testimony, circumstances, national community of specialists to
determine degree of disclosure necessary.
iii. Patient Standard
1. Requiring disclosure of all information a doctor can reasonably expect a
patient wants to make a decision. No expert testimony needed.
iv. Exception: P is incapable of consenting and harm is imminent.
v. Exception: Risk disclosure poses serious psychological threat.
iii. Negligence Per Se
1. Substitutes a statutory standard of care subject to the conditions of Membership and Harm detailed in
the statute.
2. Class of Person/Class of Risk Test
a. Membership: Class of people intended to be covered by statute.
b. Harm: Class of injury intended to be prevented by statute.
c. Statutory intent may be taken into account.
3. Exception: If compliance is more dangerous than violation.
4. Exception: If compliance is impossible under the circumstances.
iv. Res Ipsa Loquitur ("The thing speaks for itself")
"The doctrine of res ipsa loquitur may apply if an occurrence bespeaks negligence, D has control of the instrument, and P was not
contributorily negligent."
1. Elements
a. Occurrence itself ordinarily bespeaks negligence
b. D has control of instrument
c. P is not negligent
2. Jurisdictional Interpretation
a. Burden of Proof shifts to D
b. Inference of Negligence
i. Negligence may be inferred by the jury as their judgment dictates.
c. Rebuttable Presumption of Negligence
i. Negligence is presumed unless D produces sufficient evidence to overcome such
presumption.
1. Minority: If D silent, directed verdict to P.
c. Breach
iv. Breach of duty element involves identification of wrongful behavior that allegedly falls under the duty/standard.
1. “Plaintiff will claim that the defendant breached the duty/standard by… *identify conduct from fact
pattern]. This is unreasonable because… *common sense/life experience/etc+.”

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d. Causation
i. Cause in Fact/Actual Cause/But For
1. Factual linkage between the breach and the injury.
Counter to “but for” (P) is an “even if” (D)
a. But for the breach, plaintiff would be uninjured today.
b. Defendants are not causes, breaches are causes. Defendant is tied to the breach through duty
and standard of care.
2. Multiple Causation
a. Seeking indivisible harm. Separate harms with multiple actors increases the likelihood of
multiple causes of action.
b. Substantial Factor Test
i. Rebuttable inference and burden shifts to D to overcome.
c. 1 responsible, 1 innocent, both sufficient: negligent guy gets a pass.
d. Both responsible, sufficient, and known: Equal under Joint & Several, one may pay all (if one is
insolvent).
e. Separable harms: No joint liability
f. Indivisible harms: Joint & Several
g. Non-separable harms: Joint & Several
h. Acting in Concert: Joint & Several
3. Joint & Several
a. Classical: Pro rata shares with each D, individually, liable for the whole.
b. Under Comparative Negligence
i. Some jurisdictions abolish it (each liable only for their portion, not whole)
ii. Some jurisdictions retain with proportionate shares while each remains individually
liable for the whole.
1. Contribution actions between coD's still viable.
iii. Some jurisdictions retain pro rata shares.
ii. Proximate Cause
1. Tested by foresight. Negligence is relational not ambient. Was the duty related, through proximate
cause, to the harm in question. Liability will not exceed boundaries of duty.
2. Foreseeable Victim (Cardozo Majority v Andrews Minority)
3. Foreseeable type of Harm measured by a prediction at the time of the event.
a. Instantaneous harm cases are easy, and almost always foreseeable.
b. Tricky: Gap in time between the breach and the injury. Such a gap increases the likelihood of
intervening cause.
c. ID THE IC!
i. IC that is dependant (flows directly out of) the initial cause and is foreseeable will not
limit liability under proximate cause.
ii. IC that is deemed independent and superseding will cut off liability. It is deemed
unforeseeable.
iii. IC are not superseding if the defendant should have seen and avoided the general type
of harm that resulted even though the IC themselves are unforeseeable.
iv. IC is foreseeable if it represents a general type of foreseeable intervention, though it
could not have been specifically anticipated.
d. Common Dependent Intervening Causes (typically foreseeable)
i. Most common: medical malpractice, negligent rescue, reaction or protection instinct,
subsequent disease or accident ("Weakened Condition")
ii. Anything else: Are we surprised by it? If not, it’s probably not within the scope. Does
bad shrimp break arms?
e. Common Independent Intervening Causes
i. Liable: Negligent Acts, Criminal Acts, and Intentional Torts of Third Persons if they are
Foreseeable Risk
ii. Liable: Acts of God, if they are foreseeable.
f. Unforeseeable Extent or Severity of Harm (Liable - Thin Skull)
e. Damages
i. Eggshell Skull Principle: you take your P as you find them.

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f. Defenses
i. Contributory Negligence (Extreme Minority)
1. Antiquated system that has almost entirely disappeared.
2. Any demonstrable negligence on the part of P was a bar to recovery.
a. Last Clear Chance doctrine
i. P rebuttal against defense of contributory negligence.
ii. Party with the last clear chance to avoid an accident but fails to do so is liable.
iii. Does not survive shift to comparative negligence.
b. Assumption of Risk
i. P must know of the risk and voluntarily assume it.
ii. Express (highly scrutinized, beware adhesion K)
iii. Primary Implied: D has no Duty
1. Objectively determined inherent risks
2. beware reckless behavior (scope of assumption)
iv. Secondary Implied: P decided to assume the risk
1. Reasonable v Unreasonable (bar)
c. Firefighter's Rule
i. Survives Comparative Negligence
ii. Civil servants (first responders, etc) cannot recover for injuries suffered on the job as
they assume the risks inherent to their profession.
ii. Comparative Fault (Vast Majority)
1. D is entitled to show that P did not exercise proper care for her own safety (reasonable under
circumstances or statutory).
2. Pure Rule
a. Recovery allowed regardless of fault ratio.
3. Equal Bar Rule
a. Recovery is barred if P is found 50%+ at fault.
b. Minority: 50/50 still recoverable.
4. Assumption of Risk
a. No Duty, Express, and Primary Implied survive and stand on their own.
i. Full bar to recovery.
b. Secondary Implied merges.
i. Minority: still acts as a bar to recovery
5. Uniform Comparative Fault Act
a. Negligence v Recklessness
b. Magnitude of Risk
c. Actor's intent
d. Actor's superior or inferior capacities
e. Particular circumstances (ex emergency)

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