LAW SCHOOL ESSENTIALS – TORTS PROFESSOR SHERMAN CLARK UNIVERSITY OF MICHIGAN LAW SCHOOL CHAPTER 1: INTENTIONAL TORTS INVOLVING PHYSICAL INJURY A. In General 1. Three Elements o _____________________________________________________________________ o _____________________________________________________________________ o _____________________________________________________________________ 2. Voluntary Act o Defendant must have the state of mind that directed the physical movement. 3. Intent o Defendant acts with the __________________________________________ of causing the consequence; OR o Defendant acts knowing the consequence is _______________________________________ to result. Example 1: In a battery, what must be intended is the touching. It is not necessary that the defendant intend to cause further physical harm as long as the defendant intended to do the thing that is a tort. o _______________________________________ and mentally incompetent persons can be held liable for intentional torts if they act with the requisite intent. o ____________________________________________________________ intent Person intends to commit an intentional tort against one person but instead commits: • A different intentional tort against the same person; • The same intended tort against a different person; OR • A different intentional tort against a different person. Applies to: • ___________________________________________________ • ___________________________________________________ • False imprisonment • Trespass to land
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LAW SCHOOL ESSENTIALS – TORTS PROFESSOR SHERMAN CLARK
o _____________________________________________________________________ o _____________________________________________________________________ o _____________________________________________________________________
2. Voluntary Act
o Defendant must have the state of mind that directed the physical movement.
3. Intent
o Defendant acts with the __________________________________________ of causing the consequence; OR
o Defendant acts knowing the consequence is _______________________________________ to result.
Example 1: In a battery, what must be intended is the touching. It is not necessary that the defendant intend to cause further physical harm as long as the defendant intended to do the thing that is a tort.
o _______________________________________ and mentally incompetent persons can be held liable for intentional torts if they act with the requisite intent.
o ____________________________________________________________ intent
Person intends to commit an intentional tort against one person but instead commits:
• A different intentional tort against the same person; • The same intended tort against a different person; OR • A different intentional tort against a different person.
Applies to:
• ___________________________________________________ • ___________________________________________________ • False imprisonment • Trespass to land
• Trespass to chattels
DOES NOT apply to ________________________________________________________ (IIED)
4. Causation
o Defendant’s conduct was a ______________________________________ in creating the harm.
B. Battery
1. Definition
o Defendant causes a ____________________________________________________ or _________________________________________ contact with the person of another; and
o Acts with the intent to cause that contact OR the _____________________________________________________________ of that contact.
2. Consent
o No battery if there is express or implied consent.
3. Harmful or Offensive Contact
a. Harmful
Causes an ____________________________________, physical impairment, pain, or illness
b. Offensive
A person of ordinary sensibilities (reasonable person) would find the contact offensive. Defendant might be liable if aware that victim is
_____________________________________________________, but acts nonetheless.
c. Plaintiff’s Awareness
Does NOT need to be aware of contact when it occurs
Example 2: Unconscious medical patient is inappropriately touched by someone.
4. Plaintiff’s Person
o Contact with anything connected to the plaintiff’s person qualifies as contact with the person.
o E.g., the person’s clothing, a cane they are using
5. Damages
o Liable for ANY damages that ensue, even if not intended or unforeseeable
Called the “______________________________________________________” or “________________________________________________________” rule
o No proof of ______________________________________________________ is required.
Can recover ____________________________________________________ damages
o Many states allow ________________________________________________ damages if the defendant acted:
Outrageously; or With ____________________________________________________.
C. Assault
1. Definition
o Plaintiff’s ___________________________________________________________________ of an __________________________________________________ harmful or offensive bodily contact caused by the defendant.
2. Intent
o Defendant must act with the intent to either cause:
That apprehension; or The contact itself.
3. Plaintiff’s Apprehension
o Must be ____________________________________________________________ o Plaintiff must be __________________________ or have knowledge of the defendant’s act. o Actual fear is NOT required – only reasonable apprehension of an imminent contact.
4. Imminent
o Must be without significant delay o Threats of _________________________________________________ are not sufficient,
nor are threats made by a defendant who is not in a position to carry out the threat.
5. Mere Words
o Courts sometimes say “mere words do not constitute an assault.” o However, words coupled with the circumstances can indicate an imminent threat of a
harmful or offensive contact.
6. Damages
o No proof of __________________________________ damages is required. o Plaintiff can recover nominal damages and, in appropriate cases, punitive damages. o Plaintiff can also recover damages from physical harm (e.g., plaintiff suffers a heart attack).
CHAPTER 2: INTENTIONAL TORTS: IIED, FALSE IMPRISONMENT, AND DEFENSES
A. Intentional Infliction of Emotional Distress (IIED)
1. Definition
o A defendant is liable for intentionally or _____________________________________________ acting with _______________________________________________________ or __________________________________________________________ conduct that causes the plaintiff severe emotional distress.
2. Intent
o _________________________________________________________________ does NOT apply.
3. Extreme or Outrageous Conduct
o Exceeds the limits of __________________________________________________________ so as to be intolerable to society
o Mere ________________________________________________, indignities, or _______________________________________________________ are not enough.
o Courts are more likely to find conduct or language to be extreme or outrageous if:
Defendant is in a position of _______________________________________________ or ______________________________________________ over the plaintiff; or
Plaintiff is a member of a group that has a _______________________________________________________________________.
4. Conduct Directed toward Third Party
o Conduct directed at third-party victim, not the person who suffers the distress o Defendant is liable if he intentionally or recklessly causes severe emotional distress to:
A member of the ______________________________________________________ who is _______________________________ at the time of the defendant’s conduct; or
Any other bystander who is present IF:
• The defendant is aware of the other bystander; AND • The distress results in __________________________________________________.
5. Severe Emotional Distress
o Plaintiff must prove severe emotional distress beyond what a _______________________________________________________________ could endure.
o Hypersensitive plaintiff: no liability UNLESS the defendant ___________________________ and intended to take advantage of that heightened sensitivity.
Physical injury is NOT required (except in the case of a bystander other than a family member, discussed above).
B. False Imprisonment
1. Definition
o Defendant acts intending to _________________________________________ or _________________________________ another within boundaries fixed by the defendant;
o The actions directly or indirectly result in confinement; and o Plaintiff is ________________________________________________ of the confinement OR
_____________________________________________ by it.
2. Confined Within Bounded Area
o Plaintiff’s freedom of movement in all directions must be limited. o Area can be large o Does not have to be stationary o Not considered bounded if there is a reasonable means of ___________________________
3. Methods of Confinement
o Use of ___________________________________________________, physical force, threats, invalid use of legal authority, duress, or refusing to provide a safe means of escape
o Shopkeeper’s Privilege – a shopkeeper can detain a suspected shoplifter for a reasonable time and in a reasonable manner without being considered false imprisonment.
o A court may find that the defendant has confined the plaintiff when the defendant has refused to perform a _________________________________ to release the plaintiff from existing confinement or to provide a means of escape.
Example 3: A person has accidentally locked himself in the bathroom at your business. You refuse to help the person get out. This might constitute false imprisonment.
4. Intent
o Defendant must act:
With the purpose of confining the plaintiff; or ________________________________________ that the plaintiff’s confinement is
substantially certain to result.
o Confinement due to defendant’s negligence – defendant will not be liable under the intentional tort of false imprisonment (could be liable under negligence).
o Transferred intent applies to false imprisonment.
o Plaintiff must be aware of the confinement at the time it occurs OR suffer actual harm from the confinement.
6. Damages
o Actual damages are not required. o Nominal damages can be recovered unless the plaintiff is not aware of the confinement. o Punitive damages may be awarded in appropriate cases.
C. Defenses to Intentional Torts Involving Personal Injury
1. Consent
a. Express Consent
Plaintiff, by _____________________________ or ______________________________, manifests a willingness to submit to the conduct.
Consent by mistake - ____________________________________ unless defendant caused the mistake or knew of it and took advantage.
Consent by fraud - _______________________________________ if it goes to an ________________________________________________________ matter.
Consent obtained under duress (threats of physical force) - _______________________.
• Threats of economic duress will not make consent invalid.
b. Implied Consent
Plaintiff is _______________________________________ in a situation where a reasonable person would object; OR
Plaintiff participates in an environment where the contact is an expected and ordinary part of the operation.
Emergencies – when immediate action is required to save the life or health of a plaintiff who is ______________________________________________________________ of consenting to treatment, consent is unnecessary (it is implied).
Injuries arising out of athletic competitions – consent is implied by custom, usage, or participation.
• Can only recover if the injured player is a victim of the defendant’s ____________________________________________________________ for safety.
Boxing or prizefighting – plaintiff consents to torts of battery and assault.
c. Capacity
Lack of capacity (due to youth, intoxication, incompetency, etc.) may undermine the validity of consent.
A person may use reasonable force to defend against an offensive contact or bodily harm.
Must be _________________________________________________________________ to the anticipated harm
A __________________________________________________ mistake does not invalidate the defense.
b. Use of Deadly Force
Can only be used if defendant has a reasonable belief that she has been threatened with deadly force or force sufficient to cause serious bodily injury
c. Duty to Retreat
Until recently, most courts required retreat before using deadly force unless the defendant was ___________________________________________________________.
Today, many states have adopted “_______________________________________________________________” statutes.
• No duty to retreat in ANY place the defendant might legally be.
d. Initial Aggressor
NOT entitled to claim self-defense unless the other party has escalated the conflict by responding to non-deadly force with deadly force
e. Injuries to Bystanders
The actor is ___________________________________________ for such injuries as long as the injuries were accidental and the actor was behaving reasonably (not negligent).
3. Defense of Others
o Force must be reasonable o Must have reasonable belief that the other party (party being defended) would be able to
use self-defense o Must be proportionate to harm anticipated o Not liable for mistaken belief so long as the belief is _________________________________
4. Defense of Property
a. Reasonable Force
May be used if the person reasonably believes it is necessary to prevent tortious harm to the property
____________________________________________ be used A person may never use deadly mechanical devices to defend property (e.g., a spring
gun).
c. Intrusion upon Land
Reasonable force may be used to prevent or terminate an intrusion upon land. Force cannot be used if the visitor is acting under _______________________________.
d. Recapture of Chattels
Reasonable force may be used to reclaim personal property that has been wrongfully taken by another.
If the original taking was lawful and the current possessor has merely retained possession beyond the time consented to, then only _______________________________________________________ means may be used.
e. Force to Regain Possession of Land
Common law – reasonable force permitted. Modern rule – use of force is no longer permitted.
5. Parental Discipline
o Parent may use reasonable force or impose reasonable confinement as necessary to discipline their child.
6. Privilege of Arrest
a. Private Citizen
Permitted to use force to make an arrest in the case of a _________________________ IF:
• The felony has actually been committed; AND • The arresting party has reasonable grounds to suspect that the person being
arrested has committed the felony.
Reasonable mistake as to ___________________________________________ is permissible, but not a mistake as to whether the felony was actually committed.
b. Police
Must reasonably believe a felony has been committed and that the person arrested committed it.
An officer who makes a mistake as to whether a felony has been committed is _________________________________________________________.
o An intentional interference with the plaintiff’s right to tangible personal property either by:
___________________________________________________________ the plaintiff; or ____________________________ or
____________________________________________ with the plaintiff’s use of the chattel.
2. Intent
o Only the intent to do the interfering act is necessary. o Defendant need not have intended to interfere with another’s possession of tangible
property. o Mistake about the legality of the action _______________________________ a defense.
3. Damages
a. Dispossession
Plaintiff may recover ______________________________________________________ caused and ______________________________________________________________.
b. Use or Intermeddling
Plaintiff can only recover ___________________________________________________. These include diminution in value or the cost of repair.
B. Conversion
1. Definition
o Defendant intentionally commits an act depriving the plaintiff of possession of his or her chattel or interfering with the plaintiff’s chattel in a manner ___________________________________ as to deprive the plaintiff entirely of the use of the chattel.
2. Damages
o Plaintiff can recover the chattel’s __________________________________________________ at the time of conversion.
3. Intent
o Defendant must only intend to commit the act that interferes. o Intent to cause damage is NOT necessary.
o Mistake of law or fact ___________________________________ a defense. o Accidentally damaging the plaintiff’s chattel is not conversion if you had
_________________________________________________________ to use the property.
4. Interference
o Can occur by exercising _____________________________________________________ or ___________________________________________________ over the plaintiff’s chattel.
o If the original acquisition was not wrongful, plaintiff must first demand return of the chattel before suing for conversion.
5. Action for Replevin
o Alternative to damages o Action for the return of the chattel
6. Trespass to Chattels vs. Conversion
o Matter of degree of seriousness o Courts consider:
The ____________________________________________________ of the interference; Defendant’s intent to assert a right inconsistent with the rightful possessor; Defendant’s _________________________________________________________; Expense or inconvenience to the plaintiff; and Extent of ____________________________________________________________.
o Conversion – interference to such a degree that the defendant should have to pay the full value.
C. Trespass to Land
1. Definition
o Defendant intentionally causes a ___________________________________________________ of someone’s land.
2. Intent
o Defendant need only have the intent to enter the land or cause the physical invasion. o NOT the intent to commit a wrongful trespass o Mistake of fact ______________________________________ a defense.
3. Physical Invasion
o Failure to leave the plaintiff’s property after a lawful right of entry has expired constitutes a physical invasion.
o Defendant need not personally enter onto the land – flooding the land, throwing rocks on the land, etc. would count as trespass.
o Trespass – always involves an actual physical invasion or intrusion upon the land. o Nuisance – may or may not involve a physical invasion or intrusion. o Trespass – protects possessor’s interest in the land. o Nuisance – protects the ________________________________________ and
_____________________________________________________________ of the land. o No physical object enters the land – may be a nuisance; NOT a trespass.
5. Damages
o No proof of __________________________________ damages is required.
6. __________________________________________________________ as a Defense to Trespass
a. In General
Available to a person who enters the land of another or interferes with their personal property to prevent an injury that is substantially more serious than the invasion or interference.
Applies only to intentional torts to property
b. Private Necessity
Right to use the property of another to save their own lives or more valuable property Incomplete privilege – plaintiff can recover any
Private property is intruded upon or destroyed when necessary to protect a large number of people from public calamities.
________________________________________________ privilege – NOT liable for any damage to the property.
D. Nuisance
1. Private Nuisance
a. Definition
An activity that _______________________________________________ and ___________________________________________________ interferes with someone’s ______________________ and __________________________________________ of land.
Interference can be intentional, _____________________________________________, reckless, or the result of an abnormally dangerous activity.
c. Examples
Terrible odors, loud noises, excessive light, etc.
d. Substantial Interference
An interference that would be ______________________________________________, inconvenient, or annoying to a normal, reasonable person.
If it only bothers someone of special sensitivity, there is no nuisance.
e. Unreasonable Interference
Unreasonable if the _______________________________________ caused by the defendant outweighs the ___________________________________________________ of the conduct.
Involves a balancing test
f. Not a Nuisance
Historically, courts have refused to find the blocking of ___________________________ or the obstruction of views to be a nuisance.
Exception: the “spite fence”
• If a person puts up a fence with no actual purpose except to block their neighbor’s view or sunlight, courts will sometimes find that to be a nuisance.
g. Defenses to Private Nuisance
Turn on whether the defendant’s conduct was negligent, intentional, or abnormally dangerous.
• Negligent conduct – assumption of the risk or comparative negligence might apply.
Compliance with state or local administrative regulations _________________________ a complete defense.
• This is evidence as to whether the activity is reasonable.
“Coming to the nuisance”
• Courts care about who got there first – less likely to win if you moved in knowing that the activity was taking place.
• NOT a complete defense – one factor considered by the court
An unreasonable interference with a right common to the ______________________________________________________________________.
Example 4: Air pollution, pollution of waterways, blocking of a public highway
Individuals generally cannot sue for public nuisance. Statutes empower public agencies to take appropriate actions.
b. Private Citizen’s Claim for Public Nuisance
A private citizen can sue for public nuisance only if he or she suffers harm that is _____________________________________________________________________ from that suffered by members of the general public.
3. Remedies for Nuisances
a. Damages
Usual remedy Reduction of property value, personal injury, harm to property, and inchoate
interference with the use and enjoyment of land
b. Continuing Nuisance
If court deems it permanent and is not willing to grant an injunction, the court will award all past and future damages.
Called _______________________________________________________ damages Sometimes the court will award temporary damages – plaintiff will return to court if
harm continues.
c. Injunction
Monetary damages inadequate Nuisance would continue Courts “balance the equities” – utility of the activity, consequences of injunction,
relative hardships, etc.
4. Abatement
a. Private Nuisance
A person may enter another’s land to abate a private nuisance AFTER giving the defendant ___________________________________________________ of the nuisance and the defendant refuses to act.
Amount of force used must be reasonable to abate the nuisance.
o The failure to exercise the care that a ____________________________________________ in that situation would exercise and acting in a way that breaches the ____________________________________ to prevent foreseeable risks of harm to others.
The unreasonable breach of the duty must be the cause of plaintiff’s harm.
o Conduct that falls below the minimum degree of ordinary care imposed by law to protect others against unreasonable risk of harm.
o Traditional approach: what would a reasonably prudent person have done under those circumstances?
2. Elements
o _________________________________________________________________ o _________________________________________________________________ o _________________________________________________________________ o _________________________________________________________________
B. Duty
1. General Rule
o A duty of care is owed to all ____________________________________________ persons who may be injured by the defendant’s failure to follow a reasonable standard of care.
o Actor has a duty to exercise reasonable care whenever the conduct creates a risk of physical harm.
2. Failure to Act
o General rule – NO duty to act ___________________________________________________ o Even if it appears unreasonable
3. Foreseeability of Harm
o If acting affirmatively, the foreseeability of the harm to another by failing to use reasonable care is sufficient to create a ___________________________________ to act with reasonable care.
Duty of care owed to plaintiff only if plaintiff is a member of the class of persons who might be foreseeably harmed by the conduct.
Only liable to plaintiffs within the ______________________________________________________________________
b. Andrews View
Dissent in Palsgraf Proximate cause terms – if defendant can foresee harm to
_________________________________________, a duty is owed to everyone harmed as long as proximately caused.
5. Rescuers
o A person who comes to the aid of another is a foreseeable plaintiff. o If the rescuer’s efforts are unreasonable, comparative fault (negligence) principles apply. o “Firefighter’s rule” – emergency professionals are _________________________________
from recovering damages from the party whose negligence caused the professional’s injury if the injury resulted from a risk ________________________________________________.
6. Affirmative Duty to Act
o In general, no affirmative duty to help others. The following are exceptions to that rule:
a. Assumption of Duty
A person who voluntarily aids or rescues another ____________________ liable for any injury caused by the failure to act with reasonable care in performing the aid or rescue.
“Good Samaritan statutes” – protect _______________________________________ and ___________________________________________________________________ from liability for ordinary negligence when they voluntarily aid or rescue another.
b. Placing Another in __________________________________________________
Duty to exercise reasonable care to prevent further harm
c. By Authority
Person with the ability and actual authority to control another (e.g., parent-child, employer-employee) has a duty to exercise reasonable control.
d. By Relationship
Defendant has special relationship with plaintiff.
• Such as business-patron, common carrier-passenger
Duty to aid or assist those persons and prevent reasonably foreseeable injuries
1. Reasonably Prudent Person under the Circumstances
________________________________________________________ standard
a. Mental and Emotional Characteristics
Defendant is presumed to have average mental abilities and knowledge. Special knowledge or skills – defendant is held to a higher standard.
b. Physical Characteristics
Particular physical characteristics _________________________ taken into account. E.g., blindness
c. Intoxication
Intoxicated people are held to the same standard as sober people unless the intoxication was ____________________________________________________________________.
d. Children
Standard of care is that of a reasonable child of similar __________________________, intelligence, and _________________________________________________________.
More subjective Children engaged in _______________________________________________________
(e.g., driving a car) – held to same standard as adults. Many courts hold that very young children, such as under age 5, are incapable of
negligence.
2. Cost-Benefit Analysis
o Courts balance the foreseeable likelihood of harm and the severity of the harm against any precautions that should have been taken.
3. Custom
o Admissible as evidence to establish the standard of care o NOT ___________________________________________________________ evidence
4. Professionals
o Expected to exhibit the same skill and knowledge as another practitioner in the _____________________________________________________________.
o Traditional rule – physician in the “same or similar” locality o Modern trend - __________________________________________________ standard o Must provide ________________________________________________________________
Must explain risks of medical procedures Not required if risks are commonly known, patient is unconscious, patient waives the
information, patient is incompetent, or the patient would be harmed by disclosure (e.g., it would cause a heart attack).
6. Negligence Per Se
a. Basic Rule
A statute (criminal law or regulatory) imposes a particular duty for the protection or benefit of others.
Statute will establish the standard of care. Plaintiff must be in the class of people intended to be protected, the accident must be
the type of harm that the statute was intended to protect against, and the harm was caused by a violation of that statute.
b. Compliance Not Dispositive
Does not necessarily prove the absence of negligence Compliance with certain federal regulations might be dispositive (preemption).
c. Defenses
Compliance was __________________________________________________ or an _____________________________________________ justified violation of the statute.
Violation was reasonable under the circumstances
• Defendant exercised reasonable care in attempting to comply with the statute.
CHAPTER 5: NEGLIGENCE: STANDARD OF CARE (CONT’D) AND RES IPSA LOQUITUR
A. Standards of Care for Specific Classes of Defendants
1. Common Carriers and Innkeepers
o Traditional rule: ___________________________________________ duty of care consistent with the practical operation of the business.
Could be held liable for slight negligence
o Majority of courts today:
Common carriers – held to higher standard. Innkeepers – liable only for ordinary negligence (not higher standard).
o Common carriers and innkeepers have a duty to act affirmatively based on the special relationship with passengers and guests.
2. Automobile Drivers
o Owe ordinary care to their guests and passengers o Some jurisdictions have “guest statutes”: impose a duty to refrain only from
_________________________________________________________________, ________________________________________________, or willful misconduct.
Proof of simple negligence will not result in recovery for the plaintiff.
3. Bailors and Bailees
o Bailment – bailee temporarily takes possession of another’s (the bailor’s) property.
E.g., driver leaves car with a valet
o Duty of care depends on the circumstances. o Gratuitous bailee – bailor must inform bailee of ______________________________
dangers or defects in the property. o Bailee for hire – bailor must inform bailee of defects that are
____________________________ or ___________________________________________ by the bailor.
o Bailee’s duty:
When a bailor receives the sole benefit from a bailment, bailee is only liable if ____________________________________________________________________.
When the bailee receives the sole benefit from a bailment, bailee must exercise _____________________________________________________________________.
Bailment for mutual benefit – bailee must exercise ___________________________________________________________________.
o Standard of care is that of a reasonable person in the same situation.
B. Possessors of Land
1. Two Approaches
o Half of all jurisdictions continue to follow the traditional rules – standard of care owed to people who come onto the land depends on whether the person is an invitee, a licensee, or a trespasser.
o Other half of jurisdictions – reasonable standard of care is owed to ALL invitees and licensees.
Abolished distinction between invitees and licensees
2. Trespassers
o On the land without consent or privilege
a. Traditional Approach
Possessor is obligated to refrain from ___________________________________, ______________________________________________, reckless, or _____________________________________________ misconduct toward trespassers.
Use spring gun or another trap will result in liability ________________________________________________________________ or
• Must warn these trespassers of __________________________________________, __________________________________________________________________, _____________________________________________________ conditions.
• Must exercise reasonable care when conducting activity on their land.
Undiscovered trespassers – no duty owed. “_____________________________________________________________ Doctrine”
• Possessor of land may be liable to injuries to ________________________________ trespassing on the land if:
o An artificial condition exists in a place where the owner __________________________ or has _________________________________ children are likely to trespass;
o The land possessor knows or has reason to know the artificial condition poses an unreasonable risk of _________________________________________ or _________________________________________________________________;
o The children, because of their youth, do not discover or cannot appreciate the danger;
o The utility to the land possessor of maintaining the condition is slight compared to the risk of injury; and
o The land possessor fails to exercise reasonable care.
b. Modern Approach
A few states Land possessor owes a duty of reasonable care under the circumstances to anyone on
their land. Courts will consider whether the person was a trespasser in deciding whether the land
possessor took reasonable care.
3. Licensees
o Enters the land with express or implied permission
Example 5: Social guests, emergency personnel, or other persons land possessors allow to use their land.
o Traditional rule: land possessor has a duty to either ________________________________ or _______________________________ the licensee of concealed dangers that are known or should be known to the land possessor.
No duty to _________________________________________ for dangers Must exercise reasonable care in conducting activities on the land
4. Invitees
o Owed the highest level of care o __________________________________________ invitee: someone invited to enter and
remain on the land for the purposes for which the land is open to the public.
Example 6: Guests in a museum
o __________________________________________ invitee: someone invited to enter and remain on the land for the purpose of conducting a business transaction.
Example 7: Customer in a store
o Possessor owes a duty of ____________________________________________________. o Duty does not extend beyond the scope of the invitation – invitee becomes trespasser if
exceeds the scope. o Non-delegable duty o Recreational land use – landowner who opens his land up to the public is not liable for
injuries to a recreational user unless the landowner charges a fee or acts willfully, maliciously, or with gross negligence.
o Tenant assumes any duty owed by the landlord. o Landlord remains liable for injuries to the tenant and others in
_________________________________________________________, injuries from hidden dangers about which the landlord did not warn the tenant, injuries as a result of the landlord’s own negligence, or injuries from a hazard the landlord has agreed to repair.
6. Off-premises Victims
o Land possessor generally not liable for injuries resulting from natural conditions.
Exception: trees in urban areas
o Artificial conditions – must prevent unreasonable risk of harm to persons not on the premises.
o Must exercise reasonable care in conducting activities on the land.
7. Sellers of Real Property
o Duty to disclose to buyers concealed and unreasonably dangerous conditions known to the seller.
C. Res Ipsa Loquitur
1. General Principle
o Under some circumstances, ______________________________________________________ evidence of negligence is sufficient.
2. Elements
o The accident was of a kind that usually does not occur in the absence of negligence; o Caused by an agent or instrumentality within the
_______________________________________________________________________ of the defendant; and
o Was not due to the ____________________________________________________ fault.
3. Medical Malpractice Cases
o Doctrine has been extended. o Shifts the burden by holding ALL defendants jointly and severally liable unless they can
• Plaintiff must show that the breach was the cause of his or her harm. • Causation has two components:
o _____________________________________________________________ o _____________________________________________________________
B. Cause in Fact
1. “________________________________” Test
o Plaintiff must show that the injury would not have occurred “but for” the defendant’s negligence.
o If the injury would have occurred despite the defendant’s conduct, then there is no factual causation.
2. Multiple Tortfeasors
o The “but-for” test can be problematic in the following circumstances:
There are several tortfeasors and it cannot be said that one particular defendant’s tortious conduct was necessary to cause the harm;
There are multiple potential ______________________________________ of the harm and the plaintiff cannot prove which defendant caused the harm; or
There is a negligent misdiagnosis in a case where it is likely that the plaintiff would have died anyway.
o Many courts use the “____________________________________________________” test.
Was the defendant’s conduct a substantial factor in causing the plaintiff’s harm?
3. Specific Situations
a. Concurrent Tortfeasors Contributing to an Individual Injury
When the tortious acts of two or more defendants are each a factual cause of an ___________________________________________________ injury to the plaintiff, __________________________________________________________ and ______________________________________________ liability applies.
Each defendant is potentially liable for the whole harm.
Example 8: I negligently cover up a stop sign on my road. Someone else negligently drives too fast. As a result, a child is hit. Both acts were the causes of the harm. Thus, joint and several liability applies.
Plaintiff’s harm was caused by only one of a few defendants (usually two) and it cannot be determined which one caused the harm.
Courts will shift the burden to the defendants – will impose liability on both unless they can show which one of them caused the harm.
c. Concert of Action
If two or more tortfeasors were acting together pursuant to a _________________________________________________ and that causes the plaintiff’s harm, all defendants will be ______________________________________________ and ____________________________________________ liable.
d. Loss of Chance of Recovery
Physician negligently fails to diagnose a disease and thereby reduces the plaintiff’s chance of survival, but the plaintiff’s chance of survival was less than _______________ to start with.
Courts allow a partial recovery for the lost chance of survival.
4. Causal Linkage
o Typically, once plaintiff proves cause in fact, he also implicitly proves that the conduct increased the chance of harm.
o However, sometimes this is just coincidental.
Example 9: Someone is negligently speeding. I cut a tree that happens to fall on his car negligently. Was his speeding a “but-for” cause of his own harm? ________________________________. However, speeding did not increase the risk that his car would be hit by a falling tree. It was purely coincidental.
o Thus, proximate cause must also be shown.
C. Proximate Cause
1. In General
o In addition to cause in fact, plaintiff must prove proximate cause. o Some courts use the phrase “scope of liability.” o Modern Rule: Liability is limited to those harms that result from the risk that made the
defendant’s conduct tortious. o Other courts follow Andrews’ dissent in Palsgraf. They look to a set of factors:
Is there a natural and foreseeable _____________________________________________________________________?
Was there a direct connection without too many intervening causes? Was the cause likely to produce the effect? Could the defendant have _________________________________________ the harm? Was the cause too remote in time and space?
2. Extent of Damages
o Need not be _____________________________________________________________ o “Eggshell plaintiff” rule o Liable for full extent of damages even if more severe than expected.
3. Intervening and Superseding Causes
a. Intervening Cause
Factual cause that contributes to the harm _______________________________________ the defendant’s negligence.
b. Superseding Cause
A particular intervening cause that ______________________________________ the chain of causation, preventing the defendant from being liable.
_______________________________________________________ intervening cause is a superseding cause.
________________________________________________________ intervening cause is NOT a superseding cause.
CHAPTER 7: NEGLIGENCE: DAMAGES AND SPECIAL RULES OF LIABILITY
A. Damages
1. Actual Damages
o Plaintiff must prove ______________________________________________________.
Personal injury or property damages
o _____________________________________________ damages cannot be recovered. o Plaintiff who suffers only economic loss without any related personal injury or property
damage generally ________________________________________ recover in negligence.
2. Mitigation of Damages
o Plaintiff must take steps to ______________________________________ damages. o Limitation on recovery o Contributory negligence jurisdiction – failure to mitigate can ________________________
recovery by the plaintiff for any additional harm cause by aggravation of the injury. o Comparative negligence jurisdiction – failure to mitigate is taken into account but does not
categorically prevent recovery, even for the additional harm.
3. Personal Injury: Categories of Damages
o ____________________________________________________________________ o ____________________________________________________________________ o ____________________________________________________________________
4. Property Damage
a. General Rule
Plaintiff may recover the difference between the ____________________________________________________________________ of the property before and after the injury.
b. Harm to Personal Property
Most courts allow recovery of the cost of _____________________________________.
c. Household Items
Courts often use __________________________________________________________ value as the measure of damages.
Payments to the plaintiff from outside sources, such as medical insurance, __________________________ credited against the liability of any tortfeasor.
NOT admissible at trial
b. Modern Trend
Most states have eliminated or substantially altered the rule. Payments made to the plaintiff by the defendant’s insurer are NOT considered
collateral-source payments.
• These are credited against defendant’s liability.
6. Punitive Damages
o Recoverable if plaintiff can show defendant acted __________________________________, wantonly, recklessly, or with __________________________________________________.
o Also available for inherently malicious torts, such as IIED
B. Special Rules of Liability
1. Negligent Infliction of Emotional Distress (NIED)
a. Rule
Plaintiff can recover from a defendant whose negligence creates a foreseeable risk of ____________________________________________________ to the plaintiff if the defendant’s action causes a threat of _________________________________________ that in turn causes emotional distress.
Generally, the emotional distress must result in _______________________________________________________________________.
Example 10: A person thinks they are about to get run over by a negligent driver. They do not get run over. However, they are very frightened and that fear manifests itself as a heart attack. The plaintiff can recover.
Misdiagnosing a patient with a terminal illness is another way NIED can occur.
b. Zone of Danger
Generally, the plaintiff must fear for their own safety.
c. Recovery for Witnessing Someone Else Get Hurt
Only allowed to recover if the plaintiff is:
• ______________________________________________________________ to the person injured by the defendant;
• Present at the scene; and • _____________________________________________________________ the
accident.
Example 11: A mother sees her child negligently run over right in front of her.
2. Wrongful Death and Survival Actions
a. Wrongful Death
Decedent’s spouse, next of kin, or other personal representative brings suit to recover losses suffered as a result of the decedent’s death.
Actions created by state statutes Damages include loss of ___________________________________________ and loss of
companionship and society.
b. Survival Actions
Created by statute Allow the personal representative of the decedent’s estate to pursue claims that the
decedent herself would have had at the time of her death. Claims include damages resulting from personal injury or property damage.
3. Recovery for Loss Arising from Injury to Family Members
a. Spouses
May recover for loss of ____________________________________________________ and services if other spouse is injured.
b. Parent-child
Parent can sometimes recover for the loss of services if a child is injured. Parent can recover for loss of companionship in a wrongful death action if child is killed.
• Only a FEW jurisdictions allow a parent to recover such damages if a child is injured but NOT killed.
Many jurisdictions allow the child to recover for the parent’s companionship in a wrongful death action.
c. Limitations
Recovery is reduced by comparative fault in a comparative fault jurisdiction and precluded in a contributory negligence jurisdiction.
CHAPTER 8: NEGLIGENCE: VICARIOUS LIABILITY, IMMUNITIES, AND SHARING LIABILITY AMONG MULTIPLE DEFENDANTS
A. Vicarious Liability
1. In General
o One person is held liable for another’s negligence.
2. Respondeat Superior
o Employers are liable for the torts (negligence and sometimes intentional torts) of their employees.
o Employer is liable for employee torts that are within the ___________________________________________________________________________.
Includes:
• Things the employee is employed to perform; • Activities that are intended to _________________________________ or benefit
the employer; or • Intrinsic to the employment relationship.
o Careful instructions by the employer to the employee are not enough to insulate the employer from liability.
o Liability for intentional torts – if such torts are part of the job (e.g., a bouncer). o Detour – employer is still liable. o Frolic – employer is not liable (not within the scope of employment). o Employer can also be directly negligent.
Negligent hiring
3. Torts Committed by Independent Contractors
o A person who hires an independent contractor is generally ______________________ vicariously liable for the torts of the IC.
o Independent contractor – hired to perform a task but the employer has no right of ___________________________________________________________.
o MAY be vicariously liable for the torts of independent contractors in the following situations:
_________________________________________________________ activities; __________________________________________________________ duties; Duty of an operator of premises to keep the premises safe for the public; and Duty to comply with ______________________________________________________.
o Partners in a joint enterprise, when two or more parties have a common purpose and mutual right of control, may be liable for the tortious acts of each other that are committed within the scope of the business’s purposes.
5. Automobile Owners
a. Negligent _______________________________________________________________
The owner of a vehicle may be liable for the negligent acts of a driver to whom the car was entrusted IF the owner ______________________________________ or __________________________________________________________ of the driver’s negligent propensities.
b. _______________________________________________________________ Doctrine
Many jurisdictions The owner of an automobile may be liable for the tortious acts of any family member
driving the car with _____________________________________________________.
c. Owner Liability Statutes
Many jurisdictions have enacted statutes that provide that the owner of an automobile may be liable for the tortious acts of _________________________________________ driving the car with permission.
6. Parents and Children
a. General Rule
Parents ____________________________ vicariously liable for their minor children’s torts.
b. Exceptions
Child commits a tort while acting as ______________________________ for the parent. State statutes provide for the liability of parents for their children’s specific acts. Parent signing application for child to get his license – can be liable under state statute.
c. Negligence of Parents
May be liable for their OWN negligence with respect to their children’s conduct A parent is under a duty to exercise reasonable care to prevent a minor child from
intentionally or negligently harming a third party, provided the parent:
• Has the ability to __________________________________________ the child; and • Knows or should know of the necessity and opportunity for exercising such control.
o Recognized by many states in statutes or by case law o Can sue a seller of intoxicated beverages if a third party is subsequently injured by the
buyer’s intoxication. o If the bartender or other seller acts negligently in selling intoxicated beverages, they may be
liable.
B. Immunities
1. In General
o Traditionally, governments, _______________________________________________, and family members were immune from liability.
o Most immunities have been eliminated.
2. Federal and State Governments
o Generally immune to lawsuits under __________________________________________________________________________
o Immunity is often waived through various statutes.
a. Federal Tort Claims Act
Federal government waives immunity in tort actions. Exceptions:
• Certain enumerated torts - ______________________________________, assault, false imprisonment, and ________________________________________________;
• ____________________________________________________________ functions; • Assertion of governmental immunity by a contractor if the contractor conformed to
government specifications; and • Traditional governmental activities (tax collection, admiralty, military activity, etc.).
b. State Governments
Most have waived immunity to some extent. Exceptions and limits apply State tort claims acts vary greatly.
c. Municipalities
Traditionally, immunity attached to the performance of traditional _____________________________________________ (e.g., police and court systems).
NO immunity when the municipality performed _________________________________ function – usually performed by private citizens (e.g., running a parking facility).
• No liability to any particular citizen for the failure to fulfill its duty owed to the public at large unless the citizen has a _____________________________________.
• Needs to be some sort of reliance by the individual on the municipality
d. Government Officials
Immunity applies if performing a ____________________________________________ function, so long as not done with malice or an improper purpose.
NO immunity for ______________________________________________________ High-ranking officials (judges, legislators, and executive officials) are absolutely immune
from personal liability in performing their functions.
3. Intra-Family Immunities
a. Interspousal Immunity
Prevented one spouse from suing the other in a personal injury action Has been eliminated in every jurisdiction
b. Parent-child immunity
Traditionally, parents were immune from tort claims by their children. Recent trend – restrict parental immunity.
• Courts allow liability but NOT in __________________________________________________________ activities.
4. Charitable Immunity
o Traditionally, immune from liability. o Restricted or eliminated in almost every state
C. Sharing Liability Among Multiple Defendants
1. Joint and Several Liability
o Each of two or more defendants liable for a single indivisible harm is liable for the whole harm.
o Plaintiff can collect against any defendant. o Cannot recover double
2. Contribution
o If two or more tortfeasors are subject to liability and one of the torfeasors has paid the plaintiff more than his fair share of the damages, that tortfeasor can collect some portion of that payment from the other tortfeasors.
o Calculated differently in different jurisdictions o ONLY applies to _____________________________________________________ harms
o Plaintiff fails to exercise due care for her own safety.
2. Traditional Rule
o Still applies in 4 or 5 states o Contributory negligence is a __________________________________________ to recovery.
3. Last Clear Chance Doctrine
o In a contributory-negligence jurisdiction, plaintiff could still recover if the defendant had and did not take the _____________________________________________________________.
o Designed to mitigate the harshness of the contributory negligence rule o Defendant had the last opportunity to avoid the harm and did not take it. o A plaintiff who due to his own contributory negligence was in peril from which he cannot
escape is called a __________________________________________________ plaintiff.
Defendant is liable if she ________________________________________ or ____________________________________________________________ of the plaintiff’s peril and could have avoided harming the plaintiff but for her own negligence.
o __________________________________________________________ plaintiff – plaintiff, due to his or her own negligence, is in peril from which he or she could escape if he or she was paying attention.
Defendant is liable only if he had _____________________________________________ of the danger.
B. Comparative Negligence
1. In General
o Followed in most jurisdictions o Plaintiff’s own negligence will ________________________________________________
but not necessarily eliminate the defendant’s liability.
2. Pure Comparative Negligence
o Plaintiff’s negligence is not a complete bar. o Plaintiff’s damages are reduced by the __________________________________________
Example 12: If the plaintiff was 10% at fault, he can recover 90% of the damages. If the plaintiff was 90% at fault, he can only recover 10% of the damages.
3. Modified Comparative Negligence
o Majority of comparative fault jurisdictions o Rules:
Plaintiff is LESS at fault than defendant: plaintiff’s recovery is __________________________________________________ by his percentage of fault.
Plaintiff is MORE at fault than the defendant: plaintiff ___________________________________________ recover.
Most jurisdictions: Plaintiff and the defendant are EQUALLY at fault - plaintiff recovers _________________________________________ of his total damages.
A few jurisdictions: Plaintiff and the defendant are EQUALLY at fault – plaintiff recovers ______________________________________________________.
4. Multiple Defendants
o Plaintiff’s degree of negligence is compared to the _________________________________ degree of negligence of ALL of the defendants combined.
5. Imputed Contributory Negligence
o One person’s fault is imputed to the plaintiff to prevent or limit his recovery.
Example 13: Employers and their employees and business partners.
o Doctrine is disfavored. o Does NOT apply in the following circumstances:
A married plaintiff whose spouse was contributorily negligent in causing the harm, in a suit against a third party (spouse’s negligence not imputed);
A child plaintiff whose parent’s negligence was a contributing cause of her harm, in a suit against a third party (parent’s negligence not imputed);
An automobile passenger suing a third-party driver if the negligence of the driver of the car in which the passenger was riding also contributed to the accident (driver’s negligence not imputed); or
An automobile owner in an action against a defendant driver for negligence when the driver of the owner’s car also was negligent (driver’s negligence not imputed).
6. Distinguishing Comparative Fault, Contribution, and Several Liability
a. Comparative Fault
Always involves comparing the fault of the plaintiff against the fault of the defendant(s).
Involves comparing the degree of fault of ____________________________________________________________________
Does NOT affect the liability of any of the defendants to the plaintiff
c. Several Liability
Involves comparing the level of fault of the defendants DOES affect how much the plaintiff will receive from each of the defendants
C. Assumption of the Risk
1. In General
o Plaintiff has knowingly and willingly accepted a risk of harm and as a result, cannot recover.
2. Exculpatory Clauses in Contracts
o Plaintiff explicitly assumes the risk by contract. o Courts will hesitate to enforce exculpatory provisions if:
They disclaim liability for reckless or wanton misconduct, or _______________________ negligence;
There is a gross disparity of ______________________________________________________________________;
The party seeking to enforce the provision offers services of great importance to the public (e.g., medical services); or
The provision is subject to contract defenses (e.g., fraud or duress).
o Generally, ______________________________________________________________, ______________________________________________________________________, and _______________________________________________________________ cannot disclaim liability for negligence.
3. Participants and Spectators in Athletic Events
o These persons assume the risks of certain injuries and accidents that are inherent in the game or activity.
• Plaintiff does NOT need to show that the defendant was negligent. • If the defendant causes harm, he or she will be liable even though due care might have been
exercised. • Three categories:
o __________________________________________________________________ activities o __________________________________________________________________ o __________________________________________________________________
B. Abnormally Dangerous Activities
1. Definition of “Abnormally Dangerous”
o Classic example: explosives o An activity:
Creates a ____________________________________________________ and highly significant risk of physical harm EVEN when _________________________________________________________ is exercised; and
Is NOT a matter of _______________________________________________________.
o Courts also consider whether:
The activity is appropriate where conducted; and If it has great value to the community.
o Classic abnormally dangerous activities: ________________________________________, __________________________________________, fumigating, hazardous waste disposal, etc.
2. Scope of Risk
o Harm that occurs must result from the risk that made the activity abnormally dangerous in the first place.
Example 14: I have a jar of nitroglycerin and I put it on the edge of a table. The jar explodes. I am strictly liable. However, if the jar falls off the table and breaks someone’s toe, I am only liable if I am negligent. Strict liability is imposed as to nitroglycerin due to its explosiveness. Breaking someone’s toe is not the kind of harm for which strict liability is imposed on nitroglycerin.
o Traditional rule – owners and operators of airplanes were held strictly liable to people and objects on the ground for objects that fell off the airplane.
o Modern trend – apply ___________________________________________________ law.
C. The Rule of Rylands v. Fletcher
• Case involved a dam bursting. • Judge argued for broad rule of strict liability:
o Anyone who brings something onto his land that is capable of doing harm if it escapes is liable even if he has taken due care.
o This rule __________________________________________ been followed.
• Narrow rule from the case:
o Dangerous accumulations of ___________________________________ gives rise to strict liability.
o This rule __________________________ been followed in many jurisdictions.
D. Animals
1. Wild Animals
o Possessor of a wild animal is strictly liable for harm done by that animal even if he took all precautions to confine the animal or prevent the harm IF the harm arises from the _____________________________________________________________________ that is:
Characteristic of such wild animals; or Which the owner has _____________________________________________________.
o Plaintiff must not do anything to bring about injury. o Wild animals – as a species or class, not devoted to domestication.
Example 15: Tamed, domestic tiger is still a wild animal.
o Strict liability applies to both the actual injury AND injuries caused by the plaintiff’s _____________________________________________________________.
o Licensees or invitees can recover in strict liability. o NOT strictly liable to __________________________________________________________
Exception: injuries inflicted by a vicious watchdog.
2. Domestic Animals
o Only strictly liable if owner _________________________________ or has __________________________________________________________ of the animal’s dangerous propensities.
Enacted in a number of states Hold owners of dogs or other domestic animals strictly liable for certain kinds of injuries
3. Owner’s Animals on Another’s Land
o Owners of wild or domestic animals (other than household pets) are strictly liable for any ______________________________________________________________________ damage caused by his animal while _____________________________________________.
o Exception for household pets does not apply if the owner knows or has to reason to know the pet is going on another’s property.
4. Plaintiff’s Conduct
o Plaintiff’s contributory negligence may reduce recovery in comparative fault states. o Will NOT eliminate recovery in a contributory negligence jurisdiction o If the plaintiff is aware of the dangerous propensity of an animal and
_______________________________________________ the animal, he may be prohibited from recovering under the doctrine of assumption of the risk.
5. Landlord’s Liability
o NOT liable for harm caused by tenant’s animals o Some jurisdictions – liability imposed on landlord if landlord is
o Plaintiff’s contributory negligence ___________________________ a defense to strict liability.
2. Comparative Fault Jurisdictions
o Defendant’s liability should be _____________________________________________ by plaintiff’s comparative fault.
o Only in a minority of jurisdictions
Editor's Note 1: The professor misspoke here. Only a minority of comparative fault jurisdictions hold that the defendant’s liability should be reduced by the comparative fault of the plaintiff.
3. Assumption of the Risk
o ___________________________________________________________ to recovery
4. Statutory Privilege
o Party performing an essential public service is exempt from strict liability.
o A defect in ____________________________________________________________; o A defect in ____________________________________________________________; or o An ___________________________________________________________________.
• IF a product is defective, there are three kinds of lawsuits that can be brought:
o ___________________________________________________________ o Strict liability products liability lawsuit o ___________________________________________________________
B. Negligence
• Must show duty, breach, causation, and damages
1. Duty
o Duty to exercise reasonable care o Owed to the users of the product and bystanders
2. Breach
o Failure to exercise reasonable care in the ____________________________________________, ____________________________________________________, or sale of a product
3. Causation
o Plaintiff must prove that the defect exists AND that the defendant’s negligent conduct caused the product to be defective.
o Must show the defect caused the plaintiff’s harm
4. Damages
o Entitled to recover damages for personal injury or property damage o Cannot recover for purely ______________________________________________ loss
o The ________________________________________, _________________________________, or seller (retailer) of a defective product may be liable for any harm to person or property caused by the product if the defendant is in the business of selling such products, even if the defendant has exercised due care.
2. Elements
o Plaintiff must show:
The product was __________________________________________________________;
The defect existed at the time the product left the defendant’s ______________________________________________________________________; and
The defect ______________________________________________ the plaintiff’s injury.
3. Defective Product
a. ___________________________________________________________ Defect
Any deviation from what the manufacturer intended the product to be that causes harm to the plaintiff.
Test: compare the product against the manufacturer’s own specifications.
b. ____________________________________________________________ Defect
_____________________________________________________________ test: defective if the product is less safe than the ordinary consumer would expect, causing it to be unreasonably dangerous.
_____________________________________________________________ test: the risks outweigh the benefits.
• Plaintiff must show there is a feasible ______________________________________ that would have made the product safer.
c. Failure to Warn
Essentially a design defect claim Product should have had a more adequate warning. This defect exists if there was a foreseeable risk of harm, not obvious to the user, which
could have been reduced or avoided by reasonable warnings. Failure to include the warnings makes the product not reasonably safe. “Learned intermediary” rule:
• Deals with prescription drugs • Manufacturer has a duty to warn the _____________________________________,
but no duty to warn the __________________________________________ directly. • Exceptions:
o Manufacturer knows the drug will be administered without the intervention of doctors (e.g., mass inoculation).
o Birth control pills
4. Plaintiffs
o NOT required to be in privity of contract with the defendant. o _______________________________________ foreseeably injured by a defective product
can be a plaintiff. o Includes purchasers, other uses, and even ________________________________________
5. Defendants
o Must be in the business of selling or otherwise distributing products of that type o Includes the manufacturer, distributor, and the retailer
Even if the distributor or retailer were not responsible for the defect
o Retailer or distributor can pursue ________________________________________________ up the chain of distribution (i.e., recover from the manufacturer).
o _____________________________________________ is NOT liable for a defective product.
6. Damages
o Plaintiff can recover for personal injury or property damage. o Claims for purely economic loss cannot be brought under strict liability – must be brought
under breach of warranty.
7. Defenses
a. Comparative Fault Jurisdiction
Plaintiff’s own negligence ___________________________________________ recovery.
b. Contributory Negligence Jurisdiction
Contributory negligence is NOT a defense when the plaintiff failed to _____________________________________________ the defect OR the plaintiff __________________________________________ the product in a foreseeable way.
It IS a defense if the plaintiff unreasonably proceeded in the face of a known danger.
c. Product Misuse or Alteration
If NOT foreseeable, it is a form of comparative or contributory negligence.
• Reduces recovery in comparative fault jurisdictions • Generally bars recovery in contributory negligence jurisdictions
If foreseeable, does not bar recovery in either type of jurisdiction.
d. Assumption of the Risk
____________________________________________________ to recovery
e. Substantial Change in Product
Constitutes a __________________________________________ cause that cuts off liability
f. Compliance with Government Standards
Evidence as to whether the product is not defective but not dispositive. Exception: preemption – comprehensive federal statutory regulations
g. “________________________________________________________” Defense
Only defective if the product fails to include a safety feature or warning that was possible given the “state of the art” at the time the product was made.
h. Disclaimers or Limitations by Seller
Generally, does not _______________________ or _________________________________ a valid products liability claim.
D. Warranty
1. Implied Warranties
o Implied warranty of __________________________________________________________ o Implied warranty of __________________________________________________________
2. Express Warranties
o Affirmations or promises about the fitness or safety of products o Manufacturer is liable for breach.
3. Disclaimers
o Seller can disclaim a warranty. o ______________________________________________ goods – limitations of damages for
personal injury are __________________________________________________________.
4. Defenses
o Generally the same as the defenses to strict products liability o Additional defense: failure to give ______________________________________ of the
If the defendant’s defamatory language; Is ____________________________________________________________ the plaintiff; Is _____________________________________________________ to a third party; and _____________________________________________ the plaintiff’s reputation.
o Matters of public concern – plaintiff is required to prove _____________________________ on the part of the defendant.
Defendant was at least negligent with regard to the truth of the statement.
o Plaintiff is a ______________________________________________________ or _____________________________________________________ - must prove __________________________________________________________.
Either knowledge the statement was false or a reckless disregard as to the truth.
2. Defamatory Language
o Language that diminishes respect, esteem, or goodwill toward the plaintiff, or deters others from associating with the plaintiff.
3. “Of or Concerning” the Plaintiff
o A reasonable person must believe the defamatory language referred to this particular plaintiff.
o Refers to a group – member of the group can only bring an action if the group is so small that the matter can reasonably be understood to refer to that member.
4. Publication
o Defamatory matter must be ________________________________________________ or _________________________________________________ communicated to a third party.
o A person who repeats a defamatory statement may be liable for defamation. o Internet service providers are NOT publishers for purposes of defamation.
5. Falsehood
o Statement must be false. o Traditionally, ________________________________________ was a defense. o Today, in most states, falsehood is an element of the claim.
o Can be actionable as defamation if the person who states the opinion implies that they have facts to support it.
7. Types of Plaintiffs
a. Public Official
Someone in the hierarchy of government Has substantial responsibility or control over governmental affairs Candidates for public office
b. Public Figures
General purpose public figures – occupy positions of pervasive influence and power in society.
• Deemed public figures for ___________________________ purposes
Limited purpose public figures – not generally considered public figures.
• If they have thrust themselves into a particular issue or public debate, considered public figures with respect to the issue or debate.
c. Private Individual
1) Matter of ____________________________________________ Concern
If the plaintiff is neither a public figure nor a public official but the statement involves a matter of public concern, there are limited constitutional protections for the defendant.
2) NOT a Matter of Public Concern
If the plaintiff is a private individual and the statement is not a matter of public concern, there are no constitutional limits on state defamation law.
8. Falsity
o If (i) the defamatory statement relates to a matter of public concern or (ii) the plaintiff is a public official or public figure, the plaintiff has to prove that the defamatory statement is false as part of ________________________, rather than as a _______________________________.
9. Fault
a. Public Official or Public Figure
Must prove the defendant acted with ______________________________ Does not mean motive Either acted ______________________________________________ the statement was
false or with ___________________________________________________ for the truth
b. Private Individual and Matter of Public Concern
Must prove the defendant was at least ___________________________________________ as to the truth.
c. Private Individual but NOT a Matter of Public Concern
Constitutional requirements do not apply. Most states require at least negligence in all defamation actions.
10. Libel
o Defamation that is ____________________________________________, printed, or otherwise recorded in a permanent form.
o _______________________ and _______________________________ broadcasts are libel. o E-mail messages are also libel. o Plaintiff must only prove _____________________________________________ damages.
Compensate the plaintiff for harm to reputation
o Libel per quod – if the libel is not libelous on its face and requires additional facts to show why it is defamatory, then the libel will be treated like ______________________________.
11. Slander
o Defamation by ____________________________________________ or gesture, or any form other than libel.
o Plaintiff must prove either:
______________________________________________________ damages; OR
o Slander per se – the statement falls into one of four categories:
Plaintiff has committed a __________________________________________________. Plaintiff is unfit for his or her trade or business. Plaintiff has a ____________________________________________________________. Plaintiff has committed severe sexual misconduct.
12. Damages
a. Public Official or Public Figure
Can only recover _____________________________________ damages
• In the course of judicial proceedings; • In the course of legislative proceedings; • Between a husband and wife; and • In required publications by radio and TV.
2. Unreasonable Intrusion Upon the Plaintiff’s Private Affairs
o Defendant’s intrusion upon the plaintiff’s private affairs, solitude, or seclusion in a manner that is __________________________________________________ to a reasonable person.
o Examples: photographing someone in their bedroom, eavesdropping on a private conversation
3. False Light
o Similar to defamation
Editor's Note 2: While false light falls under the category of invasion of privacy rather than defamation, there is a lot of overlap between the two torts. Many times, material that constitutes "false light" will be defamatory as well.
o Putting together a series of half-truths that convey a false impression o Subject to the same constitutional requirements, limitations, and defenses as defamation
4. Public Disclosure of Private Facts
o Defendant gives publicity to a matter concerning the private life of another. o The publicity would be ___________________________________________________ to a
reasonable person. o NOT of legitimate concern to the public o Disfavored tort o Truth is NOT a defense.
5. Defenses
o Privileges o Consent – mistake as to consent negates the defense, even if reasonable.
o Must be about a ___________________________________________ fact o Deceptive or misleading statements o Can arise through ________________________________________________ a material fact o General rule – no duty to disclose.
May be an affirmative duty if:
• There is a ____________________________________________ relationship; • The other party is likely to be misled by statements the defendant made earlier; or • The defendant KNOWS the other party is mistaken about the basic facts of the
o Defendant ______________________________________ the representation is false or acted with ____________________________________________________________ for its truth.
3. Intent
o Defendant must intend to induce the plaintiff to _____________________________ or ________________________________________________ from acting.
4. Causation
o The misrepresentation must have caused the plaintiff to act or refrain from acting. o This means the plaintiff must have relied on the misrepresentation.
NOT justifiable if the facts are obviously false or it is clear that the defendant was stating a lay opinion.
6. Damages
o Plaintiff must prove actual pecuniary loss. o ________________________________________________ damages are NOT available. o Most jurisdictions – recovery is the “benefit of the bargain” (contract-like damages).
o The defendant - usually an accounting firm or other supplier of commercial information - who
o Provides _________________________________________________________________ to a plaintiff as a result of ________________________________________________________ in preparing the information
o Is liable to the plaintiff for pecuniary damages if there was __________________________________________________________________________
o ONLY if there is either: (i) a contractual relationship with the defendant, or (ii) the plaintiff is a third party known by the defendant to be a member of the limited group for whose benefit the information is supplied; AND
Editor's Note 3: The professor did not mention (ii) which is the other way a defendant could be held liable. See section VII.D.1. in your LSE Torts outline for more detail.
o The plaintiff relied on the information in the transaction that the supplier of information intends to influence or knows that the recipient of the information intends to influence.
2. Defenses
o Negligence defenses can be raised.
3. Damages
o Can recover out-of-pocket and consequential damages
C. Intentional Interference with Business Relations
1. Intentional Interference with Contract
a. Elements
Defendant _______________________________________ of a contractual relationship; Defendant intentionally interfered with the contract, resulting in a
______________________________________________________; and The breach caused damages to the plaintiff.
b. Nature of Contract
Must be valid CANNOT be terminable __________________________________
c. Interference with Performance other than Inducing Breach
Defendant may be liable when he prevents a party from fulfilling its contractual obligations or substantially adds to the burden of performance.
Actions must substantially exceed _____________________________________________________________________
d. Justification
Interference can be justified if motivated by public safety, public morals, health, or fixing labor conditions.
2. Interference with Prospective Economic Advantage
o A defendant may be liable for interfering with a plaintiff’s expectation of economic benefit from third parties even in the absence of an existing contract.
o Courts require very egregious conduct on the part of the defendant in order to hold him liable.
Example 16: A defendant who is the business competitor of the plaintiff will NOT be held liable for encouraging the third party to switch his business to the defendant.
3. Theft of Trade Secrets
o Plaintiff owns a valid trade secret that is not ____________________________________________________________________.
o Plaintiff has taken reasonable precautions to protect it. o Defendant has taken _________________________________________________________
to get that secret.
D. Injurious Falsehoods
1. Trade Libel
o Statements that injure a plaintiff’s business or products. o Proof of _______________________________________________ damages is required. o Plaintiff must prove:
Publication; Of a _______________________________________________________ statement; Related to the quality of the plaintiff’s business or products, or plaintiff’s title to his
business property; That resulted in damage to business relationships.
2. Slander of Title
o False statements that call into question a plaintiff’s _________________________________ of property.
Of a _________________________________________________ statement; Derogatory to the plaintiff’s title; With __________________________________________________________; Causing special damages; Diminishes value in the eyes of third parties.
E. Wrongful Use of the Legal System
1. Malicious Prosecution
o A person maliciously institutes or pursues, for some ______________________________________________________, a legal action without _______________________________________________________________ and the action is ________________________________________________________.
2. Abuse of Process
o ________________________________________ of the process of the courts o Defendant has set in motion a legal procedure and abused it to achieve some other motive. o Willful act that causes damage to the plaintiff.
Example 17: A local school board of education sued a teacher’s union and subpoenaed 87 teachers for a hearing in order to prevent the teachers from walking a picket line during a labor dispute between the union and the board of education.
